The SSA’s Natalie Davies talks to Dr Kate Seear about critiques of rights-based approaches to drugs policy.

You and your colleague, Dr Sean Mulcahy, published a paper in the International Journal of Human Rights, which suggested that we shouldn’t be “uncritically or naively embrac[ing] human rights” as a framework for drug policy reform. Can you expand on this?

I wouldn’t say that human rights have failed to help usher in policy or law reform or that they cannot support important initiatives such as harm reduction. There is evidence of human rights being put to good use in some parts of the world. The key point is that human rights approaches differ and don’t always, necessarily, or automatically work in ways that we might think they do.

Human rights don’t always prevent punitive approaches to people who use drugs or stop human rights abuses. For example, the death penalty is still widely used for drug offences, despite it being a violation of international law.

Human rights are also less reliable for those that society considers as ‘less than human’; rights have not always protected the interests of certain groups (women, LGBTQI+, Indigenous populations) who fail to fit normative ideals of the ‘human’. Some argue that human rights are not ‘neutral’ and ‘universal’, as often claimed, but that they instead reflect Western, humanist, masculine ideals and concerns.

People who use drugs have often been considered less-than-human (or outside a ‘normative’ human) for a range of reasons, including because of claims that they lack volition, or live chaotic and unstable lives in contexts that value free will, order, and stability. People who use drugs are often said to lack autonomy or to be living lives of indignity. These claims matter and link to human rights for several reasons, including because human rights are often said to be about promoting/advancing dignity, autonomy, and freedom.

As these few examples show, there is a need to think critically about how human rights and drug policy might interact, and how these ideas, logics, or value judgments might come into play. This is why we suggest that we need to carefully analyse the value of rights-based approaches.

How did you reach this critical perspective on human rights and drug policy?

In an earlier project on how addiction is understood and managed within different legal settings, I looked at how human rights and drug policy intersected in Australia. In some Australian jurisdictions, human rights Acts (based on the UK’s Human Rights Act 1998) require these parliaments to scrutinise every proposed law for its ‘human rights compatibility’. If laws limit human rights, they can still be allowed, but the limitation should be justified; legally, this requires evidence that the limitation is for a ‘legitimate objective’, and is ‘necessary’, ‘reasonable’, and ‘proportionate’.

I found that parliamentary approaches were shaped by the ideas held about how drugs work and what kinds of harms they produce. For instance, mandatory drug treatment limits several rights (e.g. freedom of movement, autonomy) but was said to be a ‘necessary’ and ‘proportionate’ measure to curb the apparent ‘evil’ of drugs and to restore people to proper functioning. In other words, human rights mechanisms don’t necessarily prevent certain kinds of (arguably punitive) approaches to people who use drugs. Different ideas/logics about drugs and the people who use them are crucial to how rights are interpreted and understood.

What did you learn about how laws position people who use drugs, compared with people who don’t use drugs?

In general terms, people who use drugs tend to be thought of as posing a risk to the safety and human rights of other people, and their rights are routinely and readily limited/violated as a result.

We collected all of the Bills that came before Australian parliaments that were then subjected to human rights scrutiny. We found 69 Bills in total. We found that rights limitations were routinely said to be justifiable on the basis that they would enhance, protect, or promote safety. Sixty-one of the 69 Bills we analysed offered justifications for rights limitations based on safety concerns. Alcohol and other drugs were said to pose threats to the safety of individuals in both public and private spaces and in many different settings or contexts. Several Bills proposed measures that were said to be justifiable on the basis that they would prevent people from offending and re-offending. Here, parliamentarians offered simplistic assertions about the effects of alcohol and other drugs, by often claiming, simply, that substances pose an inherent threat to safety. Safety was broadly defined and operationalised, and there was often no attempt to explain how, precisely, alcohol and other drugs were unsafe, beyond claiming that they make public and private spaces unsafe, and produce offending or re-offending. In many cases, the presence or consumption of any alcohol or other drugs, in any amount, was depicted as always already unsafe.

You can read more about our analysis in the paper ‘Enacting safety and omitting gender: Australian human rights scrutiny processes concerning alcohol and other drug laws’, which we published in the journal Contemporary Drug Problems.

What would a ‘new way’ of doing/applying human rights look like?

Because ideas/logics about drug use, people who use them, and ‘proper’ ways of living and being are so central to how human rights are conceptualised and applied, a shift in approach may be possible as these logics change.

One way this can be achieved is through challenging or interrogating the way that connections are made in human rights scrutiny processes, and by pressing for new and different connections. For instance, we might question how dignity, autonomy, and freedom are understood, or what is valued in human rights processes. For example, in our paper for the International Journal of Human Rights, we reported on interviews that we conducted with Australian parliamentarians and parliamentary advisors about their work. We found differing views about what dignity means and entails, with some suggesting that the goal of drug policy should be to restore people’s dignity, including through discouraging drug use and enrolling them in treatment. Others argued that this dignity needs to be thought about differently – and that it was about the ability to make choices free from normative compunctions or government interference.

New approaches to human rights might hinge in part on opening up these categories and ideals (such as ‘dignity’) and debating what they mean and look like when it comes to drug use. It might also require us to think whether dignity, autonomy, and freedom are the ideal ideals upon which to assess human rights and drug policy. At the moment, we are examining the possibilities of ‘more-than-human rights’ approaches, which involve expanding how we think about human rights through relationality with animals, plants, and other non-human actors. We will be publishing some of our findings on this down the track.

Dr Kate Seear is Professor and Deputy Director in the Australian Research Centre in Sex, Health and Society at La Trobe University. She holds the prestigious Australian Research Council Future Fellowship. She has an interdisciplinary background, as a lawyer and sociologist of health, with expertise in gender studies. She has published widely on alcohol and other drugs use, including hepatitis C and stigma, injecting drug use stigma, and harm reduction and human rights. Her most recent book is called ‘Law, drugs and the making of addiction: Just habits’, published by Routledge, and was the winner of the UK Socio-Legal Studies Association’s History and Theory book prize.

Dr Seear’s work on human rights is undertaken with Dr Sean Mulcahy, a Research Officer in the Australian Research Centre in Sex, Health and Society at La Trobe University. He has an interdisciplinary background, as a legal scholar and theatre-maker, with expertise in LGBTIQA+ rights. His forthcoming book with Routledge, ‘Performing Law’, is the first manuscript to conduct performance studies analysis of legal proceedings and builds on his body of work on law and performance.

The work featured in this interview was supported by Australian Research Council (grant number FT200100099).

This interview was edited for length and clarity.

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