15 February 2024

CESCR Cannabis Embassy contribution –– The Cannabis Embassy is an horizontal advocacy, knowledge, and support coalition of grassroots non-profit organizations from all continents. Composed of consultative status observers to different intergovernmental organizations, the Cannabis Embassy relays the concerns of communities with an interest in any of the natural plants and fungi under international drug control.

Our vision is a world where humankind lives in harmony with Cannabis sativa L. – in its versatile uses, across all ecosystems, histories and cultures – thereby contributing to the wellbeing of all life. We aim to achieve this by enabling informed, respectful, just societies where Cannabis sativa L. is normal, by fostering solidarity and amplifying voices in international drug policy, actively contributing to ongoing reforms.

NGO Sponsoring the Cannabis Embassy’s Joint CESCR Contribution:

I. Introduction

1. The definition for “drug policy” proposed by the Committee in its Annotated Outline for a Draft General Comment is on point. However, our comments relate to this statement: “drug policy is not static, as evidence of the harms or benefits of substances and drug control interventions has evolved over time.”
2. We believe it is important to keep in mind the impact of changing moral judgements and cultural views in societies around the world. In many aspects, in recent human history, drug policy has evolved under the influence of moral dogma more often than as a result of evidence.
3. The text falls short when stating that multilateral treaties impose the obligation of “preventing the non-medical use” of drugs. This is incorrect, as the Conventions are actually intended only to prevent “abuse and ill effects” (and “addiction” in the preamble). This is very distinct from non-medical use. UNODC, in its World Drug Report, explains that about 10% of drug use can be qualified as “use disorder” (current terminology for “abuse and ill effects” or “addiction”).^[1]
4. In the endnote, the Committee is using a partial, incomplete quote from the 1961 Single Convention on Narcotic Drugs: the endnote refers to Article 4(c) as follows:

“to limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade in, use and possession of drugs.”

5. However, this is not the entire Article 4(c). The full article reads:

“subject to the provisions of this Convention, to limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade in, use and possession of drugs.”

6. This article starts with the expression “subject to” which invokes a conditionality or dependence upon other textual elements within the Convention, indicating to readers that they should cross reference the current clause they are reading with another clause elsewhere. Textually, this means that the Convention establishes as a general obligation to limit activities exclusively to medical and scientific purposes, but subject to exceptions present elsewhere. The Commentary of the Single Convention explains what are these exceptions to the general limitation (i.e. the clauses to cross-reference):

“the provisions to which paragraph (c) is ‘subject’, i.e. which are excepted from its application, are article 49, article 2, paragraph 9 […].

Article 4, paragraph (c) [requires] Parties, subject to the exceptions expressly permitted by the Single Convention[1], to limit exclusively to medical and scientific purposes the possession of drugs.

    [1] Article 2, paragraph 9, […] and article 49”^[2]

7. Importantly, some of the provisions mentioned by the Commentary (to which the “exclusive limitation” is “subject to”) contain the legal regime for non-medical purposes. Notably, both Article 49 and 2(9) reference “other than medical and scientific purposes”:

• Article 49 used to allow countries a temporary reservation allowing continued traditional use for non-medical purposes during a certain period,
• Article 2(9) allows nowadays countries to exempt drugs “commonly used in industry” for non-medical purposes. The Commentary (pp. 113–114) mentions “Article 4, para. (c) together with article 2, para. 9” as examples of “cases in which non-medical consumption or industrial use is exceptionally permitted by the Single Convention.”^[3]

8. In the Committee’s text, it is mentioned that “The conventions, together with international human rights treaties and other relevant international instruments, are the framework for domestic drug laws.” It is important to consider that the Conventions have different places in national legal orders. For instance, in South Africa, the Constitution of the Republic supersedes international treaties in aspects related to human rights and the country’s Bill of Rights. This has had a direct impact on domestic drug laws in the past.^[4]
9. The importance of “other relevant international instruments” is also critical. In this regard, the sentence may be more correct if it reads: “are an important part of the framework for domestic drug laws.”
10. Regarding the Committee’s statement: “The International Narcotics Control Board, the World Health Organization, and the UN Commission on Narcotic Drugs are also responsible for making and implementing drug policy at the international level” is important to include Secretary-General/UNODC (S-G is mandated under the three conventions, and delegates its mandate to the UNODC). There are four treaty-mandated bodies in total.
11. We also note that these bodies do not “implement” the conventions but merely assist Member States. The INCB in particular has had a tendency to overstep its mandate, which remains that of an extremely limited monitoring entity. For decades, NGOs and scholars have explained that INCB is not the “international drugs police” that it is sometimes presented as. Analysts have also pointed out that INCB is the most secretive of all international organizations, even less transparent and accountable than the UN Security Council.^[5]
12. The Committee mentions five “areas of public and private life relevant to economic, social and cultural rights” but one important area seems to be missing: Cultures and cultural heritage, traditional knowledge and cultural practices, including indigenous knowledge systems. These are areas of both public and private life relevant to ESC rights which would deserve additional attention to the five other areas identified.
13. In the next paragraph, the Committee lists a series of ESC rights:

• Regarding the right to health, it is also important to emphasize the right to traditional medicines mentioned in the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) Article 24 and the UN Declaration on the Rights of Peasants and people living in rural areas (UNDROP) Article 23(2), and also aligned with Article 25 of the CESCR.
• In relation to the rights to take part in cultural life and to enjoy the benefits of scientific progress and its applications, we would like to emphasize that, for Cannabis^[6] and other natural drugs, it also covers the right to seeds, plants and genetic resources, including the right to a free prior and informed consent for access to natural heritage, genetic resources (GR), and traditional knowledge (TK) and broader cultural heritage.^[7] This is relevant because access to traditional medicinal and non-medicinal plant-based products remain restricted under drug laws, but additional risks exist such as ongoing biopiracy and misappropriation of traditional knowledge, including healer’s and farmers’ know-hows and local varieties.
• Additionally, it seems that the right to the enjoyment of a safe, clean, healthy and sustainably managed environment,^[8] and the right to the conservation of biodiversity and ecosystems,^[9] is missing from the list. Indeed, not only prohibition and eradication policies, but also legal regulations disconnected from the realities of affected populations and traditional and small-scale knowledge-holders, have disastrous impacts on the environment.^[10] These environmental rights are strongly linked with the conservation of controversial drugs as an integral part of ecosystems and the rights of indigenous peoples and local communities to maintain their traditional cultures, practices, and knowledge.^[11]

^{Image: Solidarity between cannabis activists and the South African indigenous King Khoi, occupying, living, and cultivating cannabis in the gardens of the country’s parliament in Pretoria since 2021 in protest for the recognition of their language and of their rights to Cannabis. Credit: Fields of Green for ALL NPC.}

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II. General obligations of States parties under the Covenant

14. It is key to note that, in essence, the Single Convention represents a retrogression of rights: rights that were previously afforded to people were taken away by the Convention. This is particularly explicit in Article 49, which obliges States to discontinue countless rights of indigenous peoples and local communities related to their traditional use, cultivation, trade in controlled natural drugs, while passing over their TK and cultural heritage.
15. There is a reason why many cannabis policy reform advocates refer to “re-legalization”: indeed, cannabis –like other traditional drugs– was legally accessible and part of livelihoods across continents for centuries. When the Covenant on Economic, Social and Cultural Rights was adopted, people had rights that were taken away after the Single Convention entered into force, and as the clauses of Article 49 arrived at their term by the end of the twentieth century.

Participation, consultation, transparency

16. Fundamentally, any participation and consultation of all the affected populations and groups listed in the text will remain an illusion as long as criminalization and stigmatization continues. Decriminalization is a quintessential prerequisite to any participation of those who most need to be heard.
17. Regarding what is mentioned in the Committee’s text, we would like to highlight that all patient advocates must be heard, not only “palliative care” patient advocates. Likewise, the reference to “drug-treatment” seems limiting, since the concept of abstinence and need for “drug-treatment” as understood classically is under question.
18. We praise the Committee’s intention to make a helpful contribution in framing the current status and scope of the right to consultation and participation. In line with this we suggest:

• The different specific recommendations outlined (on funding, on free prior and informed consent, etc.) should be equally applied to all stakeholders: women who use or cultivate drugs, Indigenous Peoples and local communities, peasants and rural people, youth, the elderly, displaced populations, marginalized urban communities, patients, peoples with disabilities and other health conditions, and other disenfranchized populations.
• A progressive framework for funding, monitoring, and evaluation should extend to all these interested parties and consider that funding streams already exist for specific topics (e.g. HIV/AIDS and other communicable diseases) but are entirely lacking for other areas and stakeholders.

Non-discrimination, equality, and groups or persons requiring particular attention

19. The Committee should pay special attention to the biases of colonial heritage associated with some drugs in some countries (and not others) and, in this respect, should look at drug policies on a broad basis, looking at all addictive substances and not only those listed in the three international drug control conventions. For example, alcohol is banned in some Member States but not others.

Respect, protect, fulfil: the obligation to respect

20. When the text mentions that “people who use drugs must register as drug users as a requirement of state-sponsored treatment” it is interesting to note that some countries, like Uruguay, have included a similar requirement for people wanting to access legal cannabis. Other projects of cannabis legalization have reportedly been exploring a similar mechanism. The reliance on such intrusive and non-human rights compliant dispositions in both prohibition and legalization frameworks is a concern.
21. People who use, grow, trade drugs are disproportionately affected by police violence and brutality, having their rights extinguished in the name of counter-narcotics. States should have an obligation to implement strong ethical guidelines for law enforcement and the police, including specific training on drug (evidence-based) information, against stigmatization, sensibilization and awareness of non-problematic drug use, drug use disorders, and mental health. Law enforcement authorities should also receive guidance, training, and strict guidelines in the following areas:

• International and domestic human rights standards and general legal principles;
• Rigorous training in nonviolent conflict resolution and de-escalation techniques (including use of non-lethal tools);
• Development of negotiation skills to peacefully resolve conflicts and manage challenging situations, including the utilization of diplomatic tools for effective communication and relationship-building within communities;
• Cultural competence and sensitizing (including ensure respectful and unbiased interactions with individuals from diverse ethnic, linguistic, and cultural backgrounds, training to human biases, and education on the culture and history of the geographical area of operation to enhance contextual understanding and sensitivity);
• Crisis intervention techniques, including mental health awareness, in collaboration with the health and social sectors;
• Community policing strategies;
• Ethical decision-making, including on integrity and accountability;
• Basic language proficiency to facilitate effective communication (including languages commonly used by residents & visitors, and characteristics of youth communication);
• Victim support (non-discriminatory).

Permitted limitations

22. Drug prohibition per se is a limitation to ESC and other human rights. Instead of taking prohibition policies for granted as serving the “greater good”, discussing only epiphenomena (however devastating for people and the environment), the Committee needs to question prohibition as a whole, and evaluate whether prohibiting certain drugs is a “permitted limitation” to human rights or not, and if so, under what conditions.
23. Repeated studies comparing the relative harms of different drugs have shown no correlation between actual harms and legal status.^[17] 
24. In addition, countless evidence shows that the devastating impact of prohibition is superior by several orders of magnitude to the harms of drugs themselves. Worst, we know how to reduce harms from drugs (a policy called harm reduction, often itself prohibited) but there is no way to reduce the harms of prohibition, except to repeal it.
25. We invite the Committee not only to question the unintended consequences of drug control, but the validity and legitimacy of drug control itself as a human rights-compliant response to harms that some drugs can cause to an estimated 10% of those who may use them.^[18]
26. It is our firm belief that any serious consideration of a “test … to determine whether specific drug policy interventions that affect ESC rights are permissible or not” would show that prohibition and related measures are only legitimate in theoretical thinking, but inevitably contradict the enjoyment of human rights in practice. From as early in history as “drugs” entered into contact with human societies, their prohibition became untenable.

III. Drug policy and ESC rights – substantive sections/Specific obligations of States parties under the Covenant

Determining the scope of drug control applicability (scheduling substances)

27. In addition to the lack of coherence and meaning in which drugs are scheduled and which are not, as mentioned just above and earlier (in relation to alcohol and disparities in what are considered drugs in different countries), it is important to underline that the drug control system has been built around three “pillar drugs” that are traditional (sometimes sacred) plants: coca, poppy, and cannabis. None of these plants and their derived products had been scientifically evaluated when they were placed under international control,^[19] and the international scientific assessment of some of them is still overdue:

• Cannabis was assessed internationally for the first time in 2018-2019, and the results showed that the scheduling in place since 1961 had no justification.^[20]
• Coca is currently in the process of being reviewed by the WHO.^[21]
• Opium remains the only substance which has never been scientifically assessed, besides being the origin of the entire international treaty system.^[22]

28. In addition to the lack of scientific backing, historians have shown that the initial motives behind the international control of these drugs was often rooted in colonial, racist, or other politically and morally motivated State endeavors.^[23]
29. Regrettably, it is on this biased, unscientific foundation that the treaty system has been built. And “narcotic drugs” are only defined by their “similarity” to coca, cannabis and opium. A circular and biassed definition.
30. On top of that, the treaties’ criteria for substance scheduling, under which the ECDD has to frame its reviews, are all but scientifically sound and base the addition of new drugs to the Schedules on their similarity to CCDs.^[24]
31. All of this similarly suggests that a sound, evidence-based and comprehensive revisiting of drug scheduling would ultimately justify the continued scheduling of only a few of the drugs currently controlled – the most novel, least used, and most harmful substances having no therapeutic potential whatsoever. These constitute a relatively small subset of internationally-controlled substances.

32. There is a critical element to consider: The 1961 Single Convention contains an explicit discrimination against the three “pillar drugs”, contained in its Article 2 paragraph 6, which states:

“In addition to the measures of control applicable to all drugs in Schedule I, opium is subject to the provisions of article 19, paragraph 1, subparagraph (f), and of articles 21 bis, 23 and 24, the coca leaf to those of articles 26 and 27 and cannabis to those of article 28.”

33. De facto, this submits coca leaf, cannabis, and opium to a number of legal provisions. But most importantly, this means that the measures of Schedule I apply to these 3 natural products regardless of their actual status in the schedules. Even if the WHO recommended a lower schedule based on evidence, and the recommendation was adopted, this Article 2(6) would remain in force, and therefore leave evidence-informed descheduling without effect.
34. While the descheduling/rescheduling of all drugs only requires WHO’s scientific recommendation and UN approval, the descheduling/rescheduling of these 3 specific traditional, herbal “pillar drugs” requires, in addition, a prior amendment of Article 2(6).^[25]
35. In addition to the scarcity of evidence underlying the treaties, Article 2(6) poses serious concerns as to possible discrimination, enshrined in the Single Convention, for these 3 particular drugs.^[26]

Health, social and other services for people who use controlled substances

36. We expect allied organisations and networks of people who use drugs to submit substantial inputs in this regard, that we fully support.
37. We would like to emphasise that all people who use drugs are certainly not criminals, but also that not all people who use drugs are “patients in need of treatment.” The overwhelming majority of people who use drugs are perfectly healthy individuals integrated into society, for whom moderate and harmless drug use represents a practice whose only negative experiences relate to risks of repression and other drug policy consequences. While we share in the concern for the health of the 10% of people with drug use disorders and call for support for their difficulties, the 90% should never be excluded from drug policy considerations.

Cultivation, production, distribution, of controlled substances

38. While institutions across the UN are mindful of representation across geographical areas, genders and age groups, the representation of small-scale communities associated with illicit crops cultivation, trade, and use, encounters several barriers to entry – notably, education and funding (as discussed earlier in §16 to 18). Existing monetary income related to drug policies (including the proceeds from drug seizures where drugs are illegal, or funds from taxes where drugs are legal) should be redirected towards facilitating the active participation and involvement of all civil society stakeholders, including indigenous peoples, peasant farmers, people who use drugs, and people living in communities where illicit crops are cultivated.
39. It is also important to consider that Cannabis sativa L. and other plants with a psychoactive effect are GRs their own with biodiverse environmental, traditional, cultural, and indigenous ties on different continents. All of these elements relate to ESC rights. The Committee should consider that human communities associated with these plants and fungi, are subject to high risks, which are multiple:

• The general lack of protection from abusive bioprospecting (biopiracy) for Indigenous Peoples & Local Communities with regard to their GRs, their traditions, and their right related to access and benefit sharing^[27] (exacerbated by the new issue of intellectual property misappropriation of Digital Sequence Information);
• The lack of conservation strategies for natural and human ecosystems;
• The additional prohibition of psychoactive plants and fungi, and criminalization of associated Traditional Knowledge (TK) by international and domestic prohibition laws, including explicit treaty provision and UN declarations calling governments to eradicate some controlled plants and their indigenous uses.

40. Meaningful reparations are a long way off for IPLC victims of this double edged sword wielded against their cultural inheritance and traditions. However, this journey starts with an international legal environment that is fair and just, not designed to maintain the current imbalance of power in favour of large companies and academic institutions over the rights and dignity of Indigenous peoples, local communities, and small farmers around the world.
41. Informal, legacy Cannabis markets are, to a large extent, dominated by local cultivation and consumption. Yet, Cannabis crops grown mostly by small-scale and family farmers are largely curtailed and exploited by criminal organizations, jeopardizing most of the revenue generated. The economic model of unregulated Cannabis markets is diametrically opposed to fair trade practices: highly hierarchized, full of middlemen between growers and consumers, and relying on elements of exploitation.
42. Unfortunately, licit markets sometimes also display negative characteristics. In practice, as drug policy reforms bring controlled traditional drugs into legal markets, a monitoring of economic rights is required to prevent small-scale farming and traditional craft production from disappearing under unfair competition from multinational companies.^[28] 

• Some developed countries have gained an advantage (through their vast resources) by regulating some drugs, like cannabis and psychedelics, earlier than the developing countries that are the origin of these drugs.
• Where developing countries have made legal provision for production, it is invariably foreign countries who move in under the guise of “development” or “aid” or “investment” while these countries continue to criminalise their own citizens for the very same drugs. Some extreme developments in this area should be monitored by the Committee, like the reported risks of contemporary forms of slavery in large-scale licit cannabis markets.^[29]
• This is particularly prevalent in Africa and Asia where some countries^[30] have sanctioned a medical Cannabis sector while keeping adult use, and as a consequence, traditional uses, illegal. This is known in civil society circles as the “neo-colonialist capture of our Cannabis”.

43. Fair trade approaches to nascent licit economies of controlled plants are imperative to correct this imbalance. Policy reforms ought to reduce the number of middlemen or their profits compared to those of growers and retailers, and implement a reasonable redistribution of profits along the production chain to end poverty among small-scale and traditional Cannabis farmers. A key aspect to future fair trade, in particular in licit cannabis, is the recognition of “terroirs”^[31] including through local collective intellectual property rights, for example in the form of Appellations of Origins.^[32] This is one of the ways to avoid licit drug markets to fall into over-commercialization, and risks of neo-colonial capture, and achieve a licit market resembling the coffee’s “barista” model rather than the mainstream large-scale coffee market (that WIPO describes respectively as the third wave and first wave market segments^[33]).
44. Fair trade via measures like Appellations of Origins, but also Access and Benefit Sharing in compliance with the Nagoya protocol and other instruments, are extremely important because they place free, prior, full informed consent of local communities at the center of monetary and non-monetary decisions relating to cultivation, production, and trade. This is critical because most of the areas of origin of coca, poppy, and cannabis continue to suffer from dramatic under development in terms of infrastructure, education, and other economic areas.^[34] 
45. On many of these aspects, the Committee could take inspiration in the Annex of the Nagoya protocol.^[35] We would also like to suggest the Committee consider the corpus of documentation and guidelines created in the context of the 2019–2028 UN Decade on Family Farming.^[36] The Committee could also look into country best practices with regards to traditional knowledge systems.^[37] 
46. We also call the attention of the Committee to Alternative Development programmes: While these programs are positive in theory, practice has shown they often exacerbate tensions or poor standards of living, while serving as a pretext to unacceptable eradication.^[38] Alternative Development programmes could represent a very useful enabler of ESC rights if they helped farmers transition their crops from illicit to licit, instead of changing the type of crop.^[39] The Committee should draw on its previous statement that governments should “offer alternative development programmes to the affected communities to encourage them to abandon the illicit cultivation of cannabis, including the possibility of participating in the medical cannabis market through a licensing programme for small-scale community farmers.”^[40] While this, in essence, describes ‘Regulation-oriented Alternative development’, the Committee should not frame its recommendations so narrowly and adopt a general approach to all plant-based drugs and all their uses and purposes (not only medicinal, which may be regulated under less-accessible conditions than other crop outputs like non-medical and other industrial purposes).
47. In some places where drugs are legally regulated, limitations to access to banking have continued^[41], and been shown to disproportionately affect key populations. These restrictions to banking practices raise questions as to economic rights and discrimination.^[42]
48. Finally, we would like to bring to the attention of the Committee a relatively-new socio-economic industry model for “recreational cannabis” that appeared as a user- and farmer-led social innovation in Spain three decades ago. “Cannabis Social Clubs” (CSCs), also known locally under other names, are a model of small-scale business (mostly non-profit), that has gathered attention from neighbors’ collectives, scholars, local and national policymakers, and other persons interested in drug policy for various reasons that relate to ESC rights:

• With regards to health, researchers have shown the unprecedented potential that CSCs represent for the effective implementation of harm reduction policies, in particular through peer-led prevention and harm mitigation practices,^[43]
• Because they are designed by the will of their members, those clubs add positive value to local communities by enabling people who use cannabis to take part in cultural and social life, ensuring safe spaces for them, their culture and knowledge. Modern urban cannabis and other drug-related cultures (e.g. psychedelics) are valuable and legitimate cultures that have notably contributed to societies, arts and science during the past Century. CSCs offer refuge for people of all ages – victims of repression and criminalization, including migrants originating from repressed traditional cannabis cultivating communities.
• CSCs have also shown to efficiently generate licit working alternatives for people involved in small-scale non-problematic cannabis-related activities otherwise considered unlawful. By providing licit employment to people who otherwise exert a similar activity outside of the labour system, the CSCs have helped provide an adequate standard of living for many.^[44]
• We appreciate the Committee’s mention of urban alternative development, a concept indeed not sufficiently discussed, that we have been interested in for its potential to divert vulnerable populations towards fair and stable licit opportunities such as CSCs and other forms of regulated context.

Image: A child carries branches from Cannabis plants to use as goat bedding, photo taken during an aerial eradication campaign^[50] by the South African Police Service in the Pondoland region of the Eastern Cape province, 2015. Credit: Myrtle Clarke, Fields of Green for ALL NPC. Cannabis Embassy CESCR contribution

Health and other ESC impacts of administrative and criminal sanctions related to controlled substances

49. We appreciate the comprehensive approach adopted in the outline. In support and furtherance of the work of the Committee, we have some comments on the text contained in the outline:

• We are conscious of the specific burden carried by many people of African descent living outside Africa. However, the mention of this specific subset of people also invites consideration of the disproportionate harms (of incarceration, among others) for people on the African continent. We would also like to remind the Committee that all discrimination should be strongly opposed, and everywhere around the world migrants and people from foreign origins are disproportionate victims of discrimination, marginalization and repression. In recent years, many people have been forced into migration, on all continents. Lessons learnt from the defense of the rights of people from African descent must benefit all vulnerable groups.
• When the Committee mentions “sentence reduction, suspension, early release, parole, pardons and amnesty” it would be interesting to connect these measures with the right to remedy and reparations for victims of human rights violations and take into consideration the 5 UN basic principles and guidelines on the right to a remedy and reparation: restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition.^[45]

Therapeutic uses

50. In addition, we would like to contribute on the therapeutic aspects of health and ESC rights, in particular the rights of people with disabilities as they relate to equality and non-discrimination concerning the use of all forms of controlled medicines fit for the improvement of their health. As a first step, it is important to recall that decriminalisation is a matter of urgency because, among the victims of the “wars on drugs” are the disabled, the sick, and the dying who are being denied treatment that is defined in the preamble of the Single Convention as relieving suffering.^[46]
51. Herbal, plant-based medicinal preparations have been successfully applied in traditional or complementary treatment protocols for centuries. The emergence of a proprietary pharmaceutical chemical-based model to prescription medicine is a relatively recent phenomenon, that remains marginal in many developing countries where informal and traditional medicine prevail. While modern pharmaceuticals offer great benefits for specific medical conditions, the right to health encompasses and protects the age-old use of plant-based medicines; it grants it explicitly to indigenous peoples and local communities under the UNDRIP (Art. 24) and UNDROP (Art. 23(2)).
52. Today, many patients suffer in part because of economic difficulties to pay for expensive pharmaceuticals, while world financial resources are often applied in the very same region to eradicate drug-producing plants which could have supplied affordable raw medicinal ingredients and herbal products to cover part of patients’ demands, mitigate costs, and reduce environmental footprint of international trade in medicines. While access to traditional and herbal medicine in countries where it is traditional is important, the Committee should also consider the rights of people to access these forms of medicine elsewhere:

• The world today has led many indigenous people and members of local communities to be displaced and migrate, limiting their access to their medicines;
• In addition, the rights of all people everywhere should be recognized to benefit from traditional medical science, as long as free, prior informed consent of TK holders is respected;

53. The risks of biopiracy, and corporate and neo-colonial capture, are exacerbated in the field of medicine and pharmaceuticals, calling for special attention.
54. As a result of prohibition and the ensuing stigma surrounding herbal medicines under control, these (often safer) treatments are left as options of last resort when they should have been accessible as safer first lines of treatment. Regrettably, this relegation to “last recourse” treatments continues with no other justification besides moral judgment, and despite the existence of numerous efficient clinical guidelines for both practitioners (including traditional) and patients on the safe use of herbal medicines liable to produce dependence.^[47]

Non-medical uses

55. ESC rights related to health and well-being also directly relate to the non-medical use of drugs. Although some authors have spent crazy efforts to attempt proving that “there is no human right to use drugs” the fact is that there is no reason for human right to either include such a right or exclude non-medical use from the individual rights of people and agency upon their own life.
56. The concern for the safety and well-being of children and youth is justifiable but the prohibition of drugs has created a certain moral panic and this has resulted in the criminalisation of many under the age of 18 years, particularly in developing countries. The advancement of human rights globally has led countries like South Africa^[48] to amend their laws to come into line with the fundamental rights of children and youth.
57. We suggest the Committee to consider studying the provisions of Article 2(9) of the Single Convention, which requires countries, in a slightly antiquated treaty language, to mitigate harms from their legal non-medical industries (in addition to the requirement for data reporting to INCB discussed below in the section “Measuring the impact/effectiveness of drug policies”). The specific harm reduction measures derived from this provision may also have a relevance, when read together with the goal to protect health and welfare, in the compliance and pacta sunt servanda when countries legalize non-medical use of drugs under Article 2(9).^[49]
58. International drug policy is centered around the “world drug problem” and the concept of harm reduction has historically been biased to the harms of drugs. However, the harms of drugs need to be relativised, as the vast majority of people who use drugs suffer no adverse health consequences. The discussion around drug harms also need to be mitigated by that of the vastly-superior harms of prohibition. While harm reduction is quintessential, it should not be another tree that hides the large forest of millions of non-problematic adult users who have freely decided to use a drug without harming themselves, others or the environment. This simple but powerful reality, not even mentioned once in 78 years of sessions of the Commission on Narcotic Drugs, should not be overlooked by the Committee on ESC rights.

International cooperation and assistance

59. Regarding mention of “eradication efforts”: the use of this term should stop. No eradication of traditional plants or fungi can ever be justified, under any circumstances, ever.

IV. Implementation

Measuring the impact/effectiveness of drug policies

60. We support new metrics that can meaningfully enhance knowledge of grassroots realities. The recommendations of the 2015 United Nations Development Programme (UNDP)^[51] are a useful basis in providing specific guidance for drug policy metrics. In addition, we consider that measuring instruments should be particularly sensitive to data on human rights violations and abuses against affected populations, in particular, when committed in the name of drug control; public health, harm reduction, well-being, and access to controlled medicines (and not only essential medicines; not only for palliative care) particularly in low and middle-income countries; violence and insecurity generated or exacerbated by repression and prohibition policies; environmental impacts and sustainability of policies and programmes; loss of biodiversity, conservation measures, including metrics on traditional plant varieties and associated TK; remedies and reparations for victims of human rights violations associated with drug policies.
61. Metrics on “adult use”/“recreational use” of controlled drugs like cannabis can be articulated around the requirement of data reporting to the INCB contained in article 2(9) of the 1961 Single Convention (as discussed in §7)^[52] but this requires prior modernization efforts from the INCB (discussed in §11).
62. We also suggest the Committee consults the work of an international group of experts on the interrelations of cannabis and hemp with the 2030 Sustainable Development Agenda which address specific Goals and targets,^[53] and link them with specific recommendations from the 2016 UNGASS outcome document.^[54]

V. The future of drug control

63. The Committee mentions that: “It is also worth noting that while the drug conventions are almost universally accepted, they were developed by North American and European countries with very limited input from low- and middle-income countries, and no input from communities most negatively affected by them.”
64. The statement is mostly true, but it is anachronistic to blame North America for early drug control:

• In recent decades, the academic world has witnessed the emergence of new, burgeoning, transnational historiographies of global drug control that have untapped a genesis of the current legal framework more complex than what may often be commonly perceived.^[55] An unforeseen aspect of this revisited history has been to deepen our awareness of several such commonly shared misunderstandings about the current Conventions.
• Among these: while the US has led international drug-related relations in prominent positions in the last decades, their geopolitical supremacy in this domain started fairly late in the 20th Century, mostly with the Nixon administration in 1971. Although the US initiated the Shanghai Opium Commission in 1909, they were not leaders in the field of international opium policy as Europeans were. The US did not join many of the pre-world war II drug treaties. In 1961, during the Conference of Plenipotentiaries that concluded the Single Convention on narcotic drugs, the members of the US delegation, led by Harry J. Anslinger, had a weaker voice than they had hoped. The US disliked the final text of the treaty^[56] and put off ratification until 1967 after over 50 other countries had already done so.^[57] The US federal government lasted three more years in transposing the non-self-executing provisions of the Single Convention into domestic law.^[58] The influence of developing countries in building the early international drug control system alongside mostly-European colonial powers is critical. This tendency continued even after 1961, as Latin American countries were among the most fervent supporters of the harsher criminal regime of the 1988 Convention.

65. With respect to Cannabis, inclusion under international control came mostly under pressure from Egypt and later South Africa.^[59] In the first half of the century, the isolationist US had been a passive observer of the debates at the League of Nations –the predecessor of the United Nations (UN). Before 1967, the US was not a Party to any international legal instrument which included provisions on the Cannabis plant or its products.^[60] 
66. While the USA has been the leader of the global war on some people and traditions (i.e. “war on drugs”) in the past few decades, the genesis comes from Europe and from its conservative and moralist allies in colonized or independent countries of “the Global South.”
67. For the future of drug control, the world would be well-advised to get back to the essence of the text of the drug control treaties, which place particular focus on agreements pertaining to the handling of pharmaceutical products, and whose provisions almost entirely relate to a specific subset of medical uses (i.e. prescription use of certain formula) and illicit criminal activities, while not addressing at all non-medical and non-illicit activities even though they may not lead to “abuse and ill effects.”

Conclusion

Cannabis Embassy CESCR contribution.

68. For decades, drug policy has created violence, mayhem and lawlessness. Focusing on human rights, harm reduction, immediate decriminalization, and policy reform in full cooperation with local populations and affected stakeholders are the only interventions that will benefit public health.. Outdated and racist policies perpetuate a system that affects the health and safety of marginalized communities the world over.
69. What would have happened if herbal drugs, used by humankind for millennia, had not been banned 100 years ago? Would young people use synthetic neo-cannabinoids if Cannabis access had not been destroyed? Who would use fentanyl today if opium was available? Look back at what 100 years of prohibition did: it fuelled the replacement of moderately-harmful traditional and indigenous drugs with always newer, increasingly more harmful substances. People who use drugs are terrified of the next unintended consequence of these policies.
70. This repression also affects grassroots activists and collectives – the very people who are formulating and experimenting with sustainable drug policy alternatives for the future of ALL. Prohibition and stigma keep these activist organizations away from most sources of funding. This censoring & uprooting hampers the possibilities for future change. Continued criminalisation also seriously threatens the valuable cultures and traditional knowledge of indigenous peoples and local communities working with cannabis, coca, opium, a multitude of fungi, kratom, iboga, etc., in both rural and urban areas.
71. In conclusion, we would like to point out, to the Committee, an often overlooked anomaly: The UN area of work around drugs is called the United Nations Office on Drugs and Crime. This concept of “Drugs and Crime” reflects a fundamental bias whereby drugs can hardly be considered as non-crime-related. The Committee has to question how the UN’s foundational “crime-based approach” conflicts with and creates bias against any “health and human rights-based approaches” to drug policy.
72. We reiterate our deep appreciation for the work of the Committee and it is our wish that other Human Rights Treaty bodies will follow this lead and engage in similar reviews soon.

Endnotes