2. Mann JM, Gostin L, Gruskin S, Brennan T, Lazzarini Z, Fineberg HV: Health and human rights. Health and Human Rights 1994;1: 6-23 and Leary VA: The right to health in international human rights law. Health and Human Rights 1994; 1: 24-56.
3. Defining the boundaries between drug use, misuse, and abuse is difficult as well as controversial. Nevertheless, many terms are commonly used to describe the use and misuses of drugs, "substance abuse" being the most widely accepted one. However, in an effort to avoid any bias or imprecision in terminology, this Article uses the term "drug use" as a neutral term applicable to all substances, including tobacco, alcohol, and caffeine, regardless of their legal propriety, the consequences of their use, or whether such use may be considered abusive. See, for example, Byck R: Cocaine, marijuana, and the meanings of addiction. In (Hamowy R, ed) Dealing with Drugs. Consequences of Government Control. Toronto ON, DC Heath and Co., 1987, pp 221-245.
4. Among the few texts that address the issue of international human rights with regard to drug use are the following: Silvis J, Hendriks A, Gilmore N (eds): Drug Use and Human Rights in Europe. Report for the European Commission. Utrecht NL, Willem Pompe Institute for Criminal Law & Criminology, Faculty of Law, Utrecht University, 1992; Husak DN: Drugs and Rights. Cambridge University Press, New York, 1992; Richards DAJ: Sex, Drugs, Death, and the Law. An Essay on Human Rights and Overcriminal ization. Rowman & Littlefield, Totowa NJ, 1982, pp 157-212; Richards DAJ: Drug use and rights of the person: a moral argument for decriminalization of certain forms of drug use. Rutgers L Rev 1981; 33: 607. Also, see the quote by Fluss SS infra note 180. In addition, the International Foundation' for Drug Policy and Human Rights, a foundation recently established to address this issue and located in Amsterdam, can be accessed via its internet home page ("Drug Text") at URL = https://drugtext.org, or via e-mail at [email protected]
6. At its 28 th meeting, the World Health Organization (WHO) Expert Committee on Drug Dependence addressed the human rights and ethical issues raised by drug use. "The Committee proposed a review by the WHO of ethical and human rights issues relating to the status of drug users, their families, and others affected by drug use and encouraged appropriate action by its Member States on such issues. The Committee noted that WHO had discussed a number of issues related to drug use in its contribution to the report United Nations Action in the Field of Human Rights ... and supported further study and action on these matters by WHO." [footnote omitted] (WHO Expert Committee on Drug Dependence: WHO Expert Committee on Drug Dependence. th Report. Geneva, World Health Organization, 1993, p 36 [WHO Technical Report series 836]). While they were printed in an early version of the Committee's Report, portions of the Committee's proposals were intentionally deleted from later printings of the Report, reflecting dissent over this issue by at least two Member States of the WHO Executive Committee (Canada and Japan). For an account of the suppression of this text, see Room R: Drug policy flashpoint: WHO balks at declaring drug users' human rights. The Journal [of the Addiction Research Foundation, Toronto] 1994; 23(3): 12.
Attitudes to addiction are complicated and often contradictory. Tea and marijuana are in themselves fairly harmless, yet tea is generally legal and marijuana not. Tobacco and cocaine are harmful but, again, tobacco is almost universally allowed, whereas most readers of The Economist live in countries which may imprison you for possessing cocaine. Throw in the joker of addictions which come not in syringes or cigarettes, but in casinos and computer cartridges, and you have a fine arena for combat between libertarians and puritans.
(Editorial: Bring drugs within the law. The Economist 15 May 1993, pp 13-14, at p 13; see also, Blackwell J: Sin, sickness, or social problem? The concept of drug dependence. In Blackwell JC, Erickson PG (eds): supra note 1, at p 158-174; Moynihan DP: latrogenic government. Social Policy and drug research. The American Scholar 1993; 62: 351-362, at p 362; Gostin LO: Waging a war on drug users: an alternative public health vision. Law Med Health Care 1990; 18: 385-394, at p 385).
8. Cotton P: "Harm Reduction" approach may be middle ground. J Am Med Assoc 1994; 271: 1641-1645, at p 1642 (quoting A Leshner, Director of the National Institute on Drug Abuse, Washington DC). Two examples illustrate the scope and impact of stereotyping and stigmatization in relation to drug use. In an excerpt from a column in the Daily Telegraph, Stephen Fry writes:
[T]here is a famous story of a television documentary made only a few years ago about a, group of heroin addicts. They were in middle age, prosperous and successful. They had been junkies for twenty-two years. Their behavior, appearance and mode of life was utterly normal, irreproachable. and unexciting. The documentary was never broadcast for fear of seeming to show that drug addiction need not be the nightmare that we spend so much money and time assuring our younger generations that it is. (Fry S: A drug on the market. In Fry S: Paperweight. London, Mandarin Paperback, 1992, pp 316-318, at p 317). In an article on ways by which the demand for drugs might be reduced, Jarvik comments on the use of stigmatization relating to drug testing, as follows:
Drug detection could also be used to generate antidrug social pressure. With voluntary participation in testing, drug use could be stigmatized and abstinence rewarded. In drug-infected communities, antidrug organizations could be established as a type of neighbourhood watch. To join, one would have to agree to random saliva tests. Participants would receive an award for each negative test and ultimately a certificate, perhaps a button, medal, or shield, and a token redeemable for some monetary reward. Participants who tested positive would receive free counselling and immunity from prosecution. Since participation would
14. See Turner CF, Miller HG, Moses LE supra note 10, at pp 391-393. Throughout history, stigmatization, in the modern sense of designating a group or social class as blameworthy and dangerous, has frequently appeared in times of epidemic disease. Leprosy offers the classic example of a stigmatizing disease. Individuals who were marked with its lesions were forced to live "outside the camp." During the great plagues of the fourteenth century, Jews were blamed for poisoning the wells, and terrible retribution followed .... During the cholera and yellow fever epidemics of the nineteenth century in the United States, the poor were blamed because of their "uncleanliness" and immigrants were blamed be cause of their "immorality". During smallpox epidemics in San Francisco in the latter years of the nineteenth century, blame fell on the city's Chinese inhabitants. Even as late as the 1940s, Norwegian immigrants were accused of being the vec tors of polio. [footnotes omitted] (Ibid).
17. Silvis J, Hendriks A, Gilmore N (eds) supra note 4; Gilmore N, JUrgens R, Somerville M: The interdependency between promoting and protecting human rights and reducing the harms from drugs. Abstract (AB117). Fourth International Conference on the Reduction of Drug Related Harm, Rotterdam, 14-18 March 1993; and, Gilmore N, JUrgens R, Somerville MA, Almedal C: Public health interventions and promotion and protection of human rights are compatible and mutually reinforcing. Abstract (Workshop D22). IX International Conference on AIDS, Berlin, 7-11 June 1993.
18. Gilmore N, Aggleton P supra note 9. The paucity of case law is one reflection of the "invisibility" of many drug users. In their study of drug use and human rights in Eu rope, Silvis, Hendriks and Gilmore noted:
[This study has shown there is little international human rights case law with regard to drug use. The reasons for this are not immediately apparent but, most likely, this appears to be due to "self-exclusion" of drug users. That is, drug users often fail to pursue ways to remedy alleged violations of their rights. This reflects how "hidden" drug users are as a population in society and emphasizes the profound depth of stigmatization, stereotyping and disempowerment which they face. (Silvis J, Hendriks A, Gilmore N supra note 5, at p 3).
20. L Seigel of the American Civil Liberties Union, quoted in Evans DG: How many liberties are we losing? Human Rights 1990; 17(2): 14-17, at p 15.
21. Human rights principles and concepts can offer a means to identify, analyze, and help to prevent, resolve, or minimize problems brought about by drug use, in particular those resulting from efforts to control drug use and its risks and harms. This is illustrated by the following statement:
It has been noted that the obligation of states to protect and promote economic and social rights involves three aspects: (1) the obligation to respect-not to violate the right directly by its actions; (2) the obligation to protect-preventing others from violating the rights; (3) the obligation to fulfill-the necessity for the state to take measures necessary to ensure the right. In applying these obligations, it would seem that the state is obliged to do nothing directly to injure health, such as committing torture by state agents. The obligation to respect can
24. This premise has been formulated as a neutral starting point for examining the relationships between human rights and drug use. As Hendriks and Tomaevski have stated:
Although drug consumption and the trafficking in drugs are very distinct issues, policy measures adopted to control drugs have not always clearly distinguished between these two aspects of the "drug problem". . . . [T]he prevalent linking of these two issues has resulted in the conceptual confusion regarding the application of human rights in drug control, where augmentation in favour of applying human rights is erroneously identified with advocacy for legalization of drugs or abandonment of the suppression of drug trafficking.
25. DeCew JW: Drug testing: balancing privacy and public safety. Hastings Center Rep 1994; 24(2): 17-23.
[M]ost workers believe that addictive drugs act on brain circuits that evolved to subserve the normal reinforcement functions of the central nervous system, for example, in reinforcing such biologically essential behaviours as feeding .... It is intriguing in this regard to note that the same mesotelencephalic DA [dopamine] circuits that appear to subserve the reward induced by abusable drugs are also biochemically activated by natural rewards, in a manner seemingly identical to the DA activation produced by abusable drugs. Is it possible, then, that some substance abusers have a defect in their ability to capture reward and pleasure from everyday experience, as postulated by some clinicians? If this is so, then our goals are really twofold: first to rescue addicts from the clutches of their addictions, and second, to restore their reward systems to a level of functionality that will enable them to "get off" on the real world. [footnotes omitted] (Gardner EL: Brain reward mechanisms. In Lowinson JH, Ruiz P, Millman RB (eds): Ibid, at p 88).
29. For a discussion about the recreational use of drugs, see Ashton CH, Kamali F: Personality, lifestyles, alcohol and drug consumption in a sample of British medical students. Med Educ 1995; 29: 187-192).
30. Reward can be likened to a "final common pathway" of brain function resulting in what can be described as pleasure; relief can include analgesia, tranquillisation, sleepiness, and enhanced acuity; recreation can include thrill-seeking, modifications in sensory or somatic activity, experimentation, or peer pressure-related behaviour; reinforcement can involve the use of a drug to overcome or manage responses or moods such as fear, anxiety, insecurity or uncertainty; and, replenishment reflects the need to continue to use a drug to which one has developed dependence.
31. [T]he scientific definition [of a drug] implies nothing about the purposes of drug use, which include therapeutic cure, relief of symptoms, pain, or anxiety, regulation of mood (by way either of depressants or stimulants), stimulation and exploration of religious experience, release of hallucinatory fantasy for a range of purposes, and recreational pleasure. (Richards DAJ supra note 4, at p 158). For a discussion about the patterns of drug use, see Siegel RK: Intoxication. Life in the Pursuit of Artificial Paradise. EP Dutton, New York NY, 1989, at pp 221-224.
33. As Glantz and Pickens state: Although some individuals may be particularly biologically susceptible or responsive to certain substances, preinvolvement risk for abuse does not generally appear to be highly drug-specific. For some, risk may be related to drugs with a particular type of effect, such as vulnerability to stimulants. At least in terms of some etiologic patterns, the risk may not even be specifically for substance abuse, but rather for a cluster of behaviours that are considered deviant or antisocial and that include substance abuse. The manifestation of substance abuse and the particular drug used may be related to a more general behavioral disposition that is heavily influenced by environmental factors including drug exposure/availability variables and behaviour norms of referent deviant subgroups. (Glantz M, Pickens R: Introduction. In Glantz M, Pickens R (eds) supra note 16, pp 1-14, at p 8).
34. Goldstein A,,Kalant H: Drug policy: striking the right balance. Science 1990; 249: 1513-1521, at p 1514 [footnotes omitted].
36. For a vivid description of the compulsive use of drugs and its impact on health, in particular daily activities of living, see Burroughs W: Naked Lunch. New York NY, Grove Press, Inc, 1959, in particular Introduction, at pp v-xvi.
37. This is a complex issue, in need of much more research, in particular the relationships between dependence, compulsive drug use, craving, and withdrawal, and that drugs differ in their capacity to elicit these effects. For a discussion of this issue, see West R, Gossop M: Overview: a comparison of withdrawal symptoms from different drug classes. Addiction 1994; 89:1483-1489 and Gold MS: Cocaine New York NY, Plenum, 1993, pp 3779.
38. From a psychological perspective, dependence may be a distorted homeostatic mechanism. (Solomon RL: The opponent-process theory of acquired motivation. Amer Psychologist 1980; 35: 691-712). The physiological basis for dependence is not fully understood, but it probably reflects changes in neural mechanisms following chronic exposure to a drug. Differences in craving and withdrawal effects for different drugs suggest that two opposing neural mechanisms may be involved. One mechanism-a rewarding and tolerogenic one-may rapidly induce tolerance and compulsion, manifested as craving, while a slower-aversive and non-tolerogenic-mechanism may induce longer-lasting withdrawal effects when the drug is discontinued. Such a process would explain the craving for nicotine or cocaine in the absence of severe withdrawal symptoms unlike the effects of heroin. For a discussion of neural mechanisms, see Gardner EL: Brain reward mechanisms. In Lowinson JH, Ruiz P, Millman RB (eds) supra note 28, pp 70-99.
39. One of these beliefs is the "stepping stone" or gateway hypothesis in which less harmful drug use is believed to lead inexorably to more harmful use or that the use of some drugs which are believed to be less risky or harm-producing will inevitably lead to the use of more risky or harm-producing drugs.
In the Netherlands, cannabis products are generally seen as drugs that cause relatively little harm. Of particular importance in this assessment is the rejection of
42. Nadelmann EA: Drug prohibition in the United States: costs, consequences, and alternatives. Science 1989; 245: 939-947; Jarvik ME: The drug dilemma: manipulating the demand. Science 1990; 250: 387-392; and, Goldstein A, Kalant H supra note 34
43. Lewis DC, Duncan DF, Clifford PR (Center for Alcohol and Addiction Studies, Brown University, Providence RI): Development of a Quantifiable Model for Drug Policy Analysis. Paper presented at the Fourth International Conference on Drug Related Harm, Rotterdam, 16 March 1993; also, Goldstein A, Kalant H supra note 34.
44. Reflecting this approach, Nadelmann states that: [T]he pharmacology of the substance is important, as is its purity, and the manner in which it is consumed. But much also depends upon not just the physiology and psychology of the consumer but his expectations regarding the drug, his social milieu, and the broader cultural environment, what Harvard University psychiatrist Norman Zinberg called the "set and setting" of the drug. [footnote omitted) (Nadelmann EA supra note 42, at p 944).
45. This can be likened to undervaluing the benefits of music relative to the harms that music can sometimes produce, such as being kept awake at night by a neighbor's loud radio, being crushed by inconsiderate fans at a concert, or having one's hearing injured by loud rock music. As an example, see Yassi A, Pollock N, Tran C, Cheang M: Risks to hearing from a rock concert. Can Family Physician 1993; 39: 1045-1050.
47. Walsh B, Grant M: Public Health Implications of Alcohol Production and Trade. World Health Organization, Geneva, 1985, at pp 12-13 [WHO Offset Publication No. 88]; Wagstaff A, Maynard A: Economic Aspects of Illicit Drug Market and Drug Enforcement Policies in the United Kingdom. London, HMSO Books, 1988 [Home Office Research Study 95].
48. This is illustrated by a recent discussion about the treatment of pain, which stated that: [P]hysical dependence and tolerance occur in any patient given opioids, no matter
49. See Richards DAJ supra note 4, at pp 158-159; Siegel RK supra note 31, at p 10. Ronald Siegel maintains that drug use is a fundamental biological drive of most animals and man, that it has been a feature of most cultures and its acculturation is a means of controlling its use, in particular, limiting its risks and harms. He considers intoxication, resulting from drug use, to be a fundamental drive like those of eating, drinking and sex. "Intoxication is the fourth drive."
50. Richards DAJ supra note 4, footnote 166 at p 170; Sandblom P: Creativity and Disease. How Illness Affects Literature, Art and Music. Philadelphia PA, GB Lippincott Co, 1989, pp 40-54.
51. Negrete J-C: The Andes: coca: the Incas and after. In (Edwards G, Arif A, Jaffe J, eds) Drug Use & Misuse. Cultural Perspectives. St Martin's Press, New York, 1983, pp 5865.
52. Baasher T: The use of khat. In Edwards G, Arif A, Jaffe J (eds) Mid, pp 42-49.
55. Gilmore N: The impact of AIDS on drug availability and accessibility. AIDS 1991 (suppl 2): S253-S262.
56. Farrell M, Strang J: Alcohol and drugs. Br Med J 1992; 304: 489-491; Wagstaff A, Maynard A supra note 47.
57. Abraham HD, Aldridge AM: Adverse consequences of lysergic acid diethylamide. Addiction 1993; 88: 1327-1334, and related correspondence: Addiction 1994; 89: 762-763.
58. Tobacco is an example of this association. Nicotine can be used in a compulsive manner that is relatively innocuous when delivered by chewing gum or nicotine patches. (Fiore MC, Smith SS, Joneby DE, Baker TB: The effectiveness of the nicotine patch for smoking cessation: a meta-analysis. J Am Med Assoc 1994; 271: 1940-1947). Obtaining nicotine by smoking tobacco, on the other hand, can cause a variety of harms, including lung cancer and pulmonary disease both for the smoker and for those exposed to tobacco smoke (so-called passive smoking). See, for example, Howard G: Passive smoking-some further legal issues for employers. Br J Addict 1992; 87: 695-701.
68. Abbey A, Scott RO, Smith MJ: Physical, subjective, and social availability: their relationship to alcohol consumption in rural and urban areas. Addiction 1993; 88: 489-499.
69. Zinberg NE: The use and misuse of intoxicants. Factors in the development of controlled use. In Hamowy supra note 3, pp 247-279.
70. Grund J-P C: Drug Use as a Social Ritual. Rotterdam NL, Instituut voor Verslavingsonderzoek (IVO), 1993, at pp 20-23.
71. Richards DAJ supra note 4, at p 159.
72. Suwaki H: Methamphetamine abuse in Japan. In (Miller MA, Kozel NJ, eds) Methamphetamine Abuse: Epidemiologic Issues and Implications. Washington DC, U.S. Department of Health and Human Services, 1991, pp 84-96 (National Institute on Drug Use Research Monograph 115; Publ. No. (ADM) 91-1836).
73. Morgan JP: Prohibition was and is bad for the nation's health. In Lowinson JH, Ruiz P, Millman RB (eds) supra note 28, pp 1012-1018.
74. Robins L, Herzer J, Davis D: Narcotic use in Southeast Asia and afterward. Arch Gen Psychiat 1975; 32: 955-961, and see infra note 225.
75. Gamella JF: The spread of intravenous drug use and AIDS in a neighborhood in Spain. Med Anthropol Q 1994; 8: 131-160, at p 152.
76. Husak DN supra note 4, at pp 10-11; Miller HG, Turner CF, Moses LE: AIDS. The Second Decade. Washington DC, National Academic Press, 1990, at pp 183-201; Gold MS, Schuchard K, Gleaton T: Correspondence: LSD use among US high school students. J Am Med Assoc 1994; 271: 426-427; Schuster CR, Kilbey MM: Prevention of drug abuse. In (Last JM, Wallace RB eds) Public Health and Preventive Medicine. 13th Edition. Norwalk CN, Appleton and Lange 1992, pp 769-786, at pp 774-776.
77. XTC is the popular name for methylenedioxymethamphetamine or MDMA. (Steele TD, McCann UD, Ricuarte GA: 3,4-methylenedioxymethamphetamine (MDMA, "Ecstasy"): pharmacology and toxicology in animals and humans. Addiction 1994; 89: 539551). For a discussion of its popularity, use, and control, see Morgan JP: Controlled substance analogues: current clinical and social issues. In Lowinson JH, Ruiz P, Millman RB (eds) supra note 28, pp 328-333; with regard to its popularity, see Soloij N, Hall W, Lee N: Recreational MDMA use in Sydney a profile of `Ecstasy' users and their experiences with the drug. Br J Addict 1992; 87: 1167-1172; Baldinger S: Ecstasy: a decade on the rave. OUT, Summer 1992, pp 47-53; Anonymous: Ecstasy or illusion. Gay Times (London), March 1992, pp 42-44; Parsons C: They only come out at night. The Globe and Mail (Toronto), 9 October 1993, p Al; and, Colophon: XTC, pamphlet commissioned by Netherlands Instituut voor Alcohol en Drugs (NIAD), Utrecht NL [ca. 1992 but undated].
78. Ibid and Grund J-P C: supra note 70, pp 264-267.
79. Townsend J: Editorial. Economic incentives as preventive medicine. Br J Addict 1992; 87: 1629-1630.
80. The impact of the availability of a drug on its use is illustrated forcefully when a drug is in short supply. As Jean-Paul Grund notes:
One need not go (that far) back in history to see that desirable substances presently labelled non-drugs in certain conditions can induce socially reprehensible behaviour. This can result merely from severely restricted drug availability, even without social disapproval of drug use per se. During World War II, coffee, alcohol and tobacco had only scanty availability in the Netherlands. The desire for these drugs resulted in a black market and a considerable amount of collaboration and prostitution. Likewise, a recent strike of the employees of the Italian state monopoly tobacco distribution induced huge public unrest and plain scarcity behaviours, such as street robberies of smokers, fights and riots at tobacco outlets, drug tourism to neighboring countries and illegal imports of cigarettes, which go for prices between fifteen and forty dollars a pack at the rapidly developed black market. Extreme conditions apparently foster extreme behaviours. [footnote omitted]. (Grund J-P C supra note 70, at pp 268). Also, see Wagstaff A, Maynard A supra note 47, at pp 11-22 and Caulkins JP: What is the average price of an illicit drug? Addiction 1994; 89: 815-819.
81. Gray C: The tobacco-tax rollback may end the smuggling, but what will it do to our health? Can Med Assoc J 1994; 150: 1295-1296.
82. Rankin JG, Ashley MJ: Alcohol-related health promotion. In Last JM, Wallace RB (eds) supra note 76, pp 741-767 and Goldstein A Kalant H supra note 34
83.Holden C: Street-wise crack research. Science 1989; 246: 1376-1381.
84.This is illustrated by a study of injection drug use in Australia in which it is stated that:
Other issues raised during the study included the proposition that the present laws on marijuana had made the latter so expensive that more "cost-effective" drug use-particularly the injecting of amphetamines by young people-was encouraged. Decriminalisation of personal use amounts of marijuana, it was argued, would therefore help some current injecting drug users "trade down" to less dangerous forms of use. As in most other jurisdictions, respondents interviewed in Victoria commented that there appeared to have been a major increase in the injecting of amphetamines in recent years. In part this reflected the fact that drug users found injecting amphetamines more cost-effective than smoking marijuana, now that law enforcement efforts had made marijuana so expensive. The market for amphetamines was said to be especially strong for young people. (Schwartzkopf J, Watchirs, Keys Young MSJ: Legal Issues Relating to AIDS and Intrave nous Drug Use. Canberra ACT, Intergovernmental Committee on AIDS, Department of Community Services and Health, Government of Australia, February 1991, at pp 16, 21).
85. Angell M, Kassirer JP: Editorial. Alcohol and other drugs-toward a more rational and consistent policy. N Engl J Med 1994; 331: 537-539.
86. WHO Expert Committee: Health Promotion in the Workplace: Alcohol and Drug Abuse. Geneva, World Health Organization, 1993 [WHO Technical Report Series 833].
87. There is a paucity of data on many of these costs. For a discussion of this issue, see Wagstaff A, Maynard A: The economics of drug addiction. In Berridge V (ed) supra note 16, pp 195-218. Also, see Marks RE: Costs of the prohibitions. In (Fox R, Mathews I, eds): Drugs Policy. Fact, Fiction and the Future. Annandale NSW, Federation Press, 1992, pp 118-133. Also, see Nadelmann EA supra note 42.
88. Angell M, Kassirer JP supra note 85.
89. Nadelmann EA: supra note 42.
90. See Moore M: Drugs, the criminal law, and the administration of justice. Millbank Q 1991; 69(4): 529-560.
91. See, for example, Gilmore N, Grover SA, Zowall H, Fraser RD, Deutsch A, Coupal L: Modeling health care costs attributable to HIV infection and coronary heart disease in immigrants to Canada. In (Kaplan EH, Brandeau ML, eds) Modeling the AIDS Epidemic: Planning, Policy, and Prediction. New York NY, Raven Press, 1994; pp 73-89.
92. For a discussion of the classification of drugs, see Goldstein A, Kalant H supra note 34; Jaffe J: What counts as a "drug problem"? In Edwards G, Arif A, Jaffe J (eds) supra note 52, at pp 101-111; Kaplan HI, Sadock BJ, Grebb JA: Kaplan and Saddock's Synopsis of Psychiatry, Behavioral Sciences, Clinical Psychiatry. Baltimore MD, Williams & Wilkins, 1994, pp 383-456; and, Husak DN supra note 4, at pp 19-37. Failure to consider the differences among drugs relating to their actions, effects, and consequences, including benefits and harms, appears to be tittle different than indiscriminantly grouping together airplane pilots, yacht skippers, bulldozer operators, racing car drivers, cyclists, and rollerblade and skateboard enthusiasts.
93. With regard to U.S. foreign policy, see Moore M supra note 90 and Marshall J: Drugs and United States foreign policy. In Hamowy R (ed) supra note 3, pp 137-179.
94. With regard to scapegoating, Thomas Szasz forcefully states that:
If history teaches us anything at all, it teaches us that human beings have a powerful need to form groups and that the sacrificial victimization of scapegoats is often an indispensable ingredient for maintaining social cohesion among the members of such groups. Perceived as the very embodiment of evil, the scapegoat's actual characteristics or behaviour are thus impervious to rational analysis. Since the scapegoat is evil, the good citizen's task is not to understand him (or her, or it), but to hate him and to rid the community of him. Attempts to analyze and grasp such a ritual purgation of society of its scapegoats is perceived as disloyalty to, or even an attack on, the "compact majority" and its best interests. In my opinion, the American "war on drugs" represents merely a new variation in humanity's age-old passion to "purge" itself of its "impurities" by staging vast dramas of scapegoat persecutions. In the past, we have witnessed religious or "holy" wars waged against people who professed the wrong faith; more recently, we have witnessed racial or "eugenic" wars, waged against people who possessed the wrong genetic makeup; now we are witnessing a medical or "therapeutic" war, waged against people who use the wrong drugs. [footnotes omitted] (Szasz T supra note 10, at pp 328-329).
95. Seigel RK: supra note 31, at pp 313-314.
96. Beeching J: The Chinese Opium Wars. New York NY, Harcourt, Brace, Jovanovich,1975 and Abadinsky H supra note 59, at pp 34-40.
97. Fox R, Mathews I (eds) supra note 87, pp 69-80.
98. Weil A: The Natural Mind. Boston MA, Houghton Mifflin Co, 1972, at p 193.
99. Hagan describes six sociological models or approaches to define deviant behaviour in the context of drug use and its control, namely: (1) a legal-consensus approach in which deviance is defined by laws; (2) a socio-legal approach which views deviance as anti-social behavior along with criminality as defined by law; (3) a cross-cultural approach in which "conduct norms" are the basis of defining deviant behavior; (4) a statistical approach in which deviant behavior lies outside a normal population distribution of behavior; (5) a labelling approach in which deviant behavior is defined by its label and popular assignment to certain persons or groups and their behavior; and, (6) a utopian-conflict approach in which deviant behavior is viewed as attempting to correct or repress social injustice, and society's response is to suppress this behavior, sometimes criminalizing it. (Hagan J: Drugs and disrepute: the thin line. In Blackwell JC, Erickson PG: supra note 1, pp 175-185). For discussion on various models of drug use, see Henry-Edwards S, Pols R supra note 41, pp 71-74; Gossop M, Grant M: Preventing and Controlling Drug Abuse. Geneva, World Health Organization, 1990, pp 30-36; Abadinsky H supra note 59, at pp 111-134.
100. Bayer R: Introduction: the great drug policy debate-what means this thing called decriminalization? Milibank Q 1991; 69(3): 341-363.
101. In the context of HIV infection, see Gilmore N: Human immunodeficiency virus infection and AIDS: concepts and constructs. In (Jager JC, Ruitenberg EJ, eds) AIDS Im pact Assessment Modelling and Scenario Analysis. Amsterdam, Elsevier, 1992; pp 161-188, and Kirp DL, Bayer R (eds): AIDS in the Industrialized Democracies. Passions, Politics and Policies. Montreal, McGill-Queen's University Press, 1992.
102. For a discussion of integrity, see Husak DN supra note 4, at pp 128-134.
103. Blackwell J: Sin, sickness, or social problem? The concept of drug dependence. In Blackwell J, Erickson PG (eds) supra note 1, pp 158-174.
104. For a discussion of autonomy, see Meyers DT: Self, Society, and Personal Choice. New York, Columbia University Press, 1989.
105. Richards provides an explanation for the prominence of moral inadequacy models of drug use, as follows:
In the west, Christianity appears to have sharply repudiated the use of drugs as an organon of religious experience, finding it to be a form of Gnostic heresy. Shamanic possession and ecstacy, at the heart of much earlier religion, becomes, from this perspective one form of demonic or satanic witchcraft .... The leading contemporary defender of this Judaeo-Christian repudiation, R.C. Zaehner, has argued that the technology of the self implicit in the orthodox western religions requires an unbridgeable gap between the human and the divine, expressed in the submission of the self to ethical imperatives by which persons express their common humanity and a religious humility. Accordingly, western, in contrast to nonwestern, mystical experience expresses the distance between the human and the divine. Drugs, including alcohol, are ruled out as stimuli to religious experience because they bridge this distance, indulging the narcissistic perception that the user himself is divine and thus free of the constraints of ethical submission
The most powerful political expression of this religious perspective developed in the United States, where it thus shaped America's general perception of permissible drug use ...
The religious ideals that fueled this movement [to prohibit alcohol use] became secularized into a dominant conception of "public morality," as articulated by purity reformers. Identifying morality with the asexual and spiritual nature of women in the home, these reformers perceived liquor use in the familiar masculine territory of the saloons as a threat to moral values, calling men from the spiritual sanctuary of wife and children into the coarse, competitive, and sensual public worlds of work and politics. Prohibition appears to have been associated, ideologically, with the purification of politics: the evil of liquor was increasingly condemned as a form of slavery, which undermined "a citizen in his political capacity." [footnotes omitted] (Richards DAJ supra note 4 at pp 159-161).
106. This is apparent in a publication of the United Nations in which an educational insert in The United Nations and Drug Abuse Control stated that "[t]hroughout society there is suffering because of the selfindulgence of drug addiction." (United Nations: The United Nations and Drug Abuse Control. United Nations, New York NY, 1989, at p 2 [United Nations Publication Sales No. E.90.I.3]).
107. The diverse opinions and attitudes about drug use are illustrated by the Islamic prohibition of alcohol use, temperance promoted by the United Church, Judaic cultural attitudes moderating alcohol use, Mennonite prohibition of tobacco and alcohol use, gambling, and dancing. These contrast with the culturally accepted use of coca, kava, and cannabis in some societies. On the basis of the use of drugs, communities can be characterized as dionysian or apollonian. In the former, the use of some drugs is not only not prohibited, but may even be promoted such as the use of alcohol at celebrations and public events. In the latter, as exemplified by Pueblo Indians in the southwest United States, abstinence is promoted and drug use is restricted to religious or therapeutic situations. For a discussion of this categorization, see Benedict R: Patterns of Culture. Houghton-Mifflin, Boston MA, 1959). Also, see Baasher T supra note 52 and Mann J supra note 54.
108. This is perhaps most evident in the controversy over banning the use of performance enhancing drugs by athletes. See, for example, Franklin, JE: Addiction medicine. J Am Med Assoc 1994; 271: 1650-1651.
109. Rexed B, Edmonston K, Khan I, Samson RJ: Guidelines for the Control of Nar cotic and Psychotropic Substances. Geneva, World Health Organization, 1984.
110. See, for example, Bullough VL: Homosexuality. A History. Scarborough ON, New American Library, 1979; Kinsman G: The Regulation of Desire. Sexuality in Canada. Montreal QC, Black Rose Books, 1987.
111. Alexander BK: When experimental psychology is not empirical enough: the case of the "Exposure Orientation". Can Psychol 1984; 25: 84-95.
112. For a discussion of reward-seeking in relation to drug use, see Gardner EL supra note 28.
113. See Richards DAJ supra note 4, at p 162.
114. For a discussion of coping theory, see Lazarus RS: Coping theory and research: past, present, and future. Psychsom Med 1993; 55: 234-247.
115. See supra note 40 and accompanying text. Philosopher Emanuel Kant considered that:
It is immoral to abdicate or alienate one's autonomy or one's capacity for selfcritical choice about the form of one's life through consent to any form of slavery. But Kant was wrong in thinking that drug use involves a similar kind of alienation. Voluntary use of drugs cannot reasonably be supposed to be a slavery that alienates the moral personality, because even psychological devotion to drugs may express not a physiological bondage, but critical interests of the person. Indeed, there is something morally perverse in condemning drug use as an intrinsic moral slavery when the very prohibition of it seems to be an arbitrary abridgement of personal freedom. Richards DAJ supra note 4, at p 177.
116. For example, Julie Hamblin has identified three models for legal intervention relating to HIV infection and AIDS which are also applicable to drug use. These are a proscriptive model, exemplified by criminal laws; a protective model, exemplified by human rights and anti-discrimination laws, and an instrumental model, exemplified by legislation that ensures access to education and health care preventive measures, such as condoms and clean injection equipment, and health care, and legislation addressing the socioeconomic problems underlying the pandemic. (Hamblin J: The role of law in HIV/AIDS policy. AIDS 1991; 5 (suppl 2): S239-S243).
117. American Medical Association Council on Scientific Affairs: Helmets and preventing motorcycle- and bicycle-related injuries. J Am Med Assoc 1994; 272: 1535-1538 [footnotes omitted].
118. There is very little data confirming a genetic predisposition to drug use or its persistence. For a discussion of this issue, see Clayton RR: Transitions in drug use: risk and protective factors. In Glantz M, Pickens R (eds) supra note 16, pp 15-51, at pp 29-32; Stollerman IP: The nature of addiction: the behavioral approach. In Berridge V (ed) supra note 16, pp 219-236, at pp 225-227. It may well be that a predisposition to use drugs, or to persist in using them, may be the end result of polygenic expression rather than a single gene defect. This would account for the apparent lack of specificity in the drugs which are used. Also, see supra notes 16 and 33 and accompanying text.
119. Anthenelli RM, Schuckit MA: Genetics. In Lowinson JH, Ruiz P, Millman RB (eds) supra note 28, pp 39-50; Franklin JE supra note 108; and, Noble EP, Blum K, Gelertner J, Risch N, Goldman D: Correspondence: Alcoholism and the D Z dopamine receptor gene. J Am Med Assoc 1993; 270: 1547-1548.
120. Cadoret RJ: Genetic and environmental factors in initiation of drug use and the transition to abuse. In Glantz M, Pickens R (eds) supra note 16, pp 99-113 and Grande TP, Wolfe AW, Schubert DSP, et al: Associations among alcoholism, drug abuse and antisocial personality: a review of the literature. Psychol Rep 1984; 55. 455- 474.
121. Blum K, Sheridan PJ, Wood RC, Braverman ER, Chen TJH, Comings DE: Dopamine DZ receptor gene variants-association and linkage studies in impulsive-addictive-compulsive behaviour. Pharmacogenetics 1995; 5: 121-141.
122. Blackwell J supra note 7. Moon MM, Latessa EJ: Drug treatment in adult probation. An evaluation of an outpatient and acupuncture program. Evaluation Program Plan ning 1994; 17: 217-226.
123. Among these interventions are the use of nicotine patches to reduce nicotine craving, antabuse to prevent alcohol use, methadone maintenance to prevent drug injecting and use of illicit opiates, and the use of tricyclic antidepressants to reduce cocaine craving.
124. Abadinsky H supra note 59, at p 113.
125. In 1978, the Province of British Columbia enacted a law requiring compulsory treatment of persons using opiates illegally, which was subsequently declared unconstitutional. This is discussed in Boyd N, Millard CJ, Webster CD: Heroin "Treatment" in British Columbia, 1976-1984: thesis, antithesis, and synthesis. In Blackwell J, Erickson PG (eds) supra note 1, pp 195-208. See, also, Moon MM, Latessa EJ supra note 122.
126. Anonymous: High and hooked. The Economist 15 May 1993, pp 105-107.
127. See supra note 123.
128. There is an extensive literature on the issue of fetal exposure to drugs. These include: Caudill BD, Hoffman JA, Hubbard RL: Parental history of substance abuse as a risk factor in predicting crack smokers' substance use, illegal activities, and psychiatric status. Am J Drug Alcohol Abuse 1994; 20:341-354; Hawk M, Norton A: How social policies make matters worse: the case of maternal substance abuse. J Drug Issues 1994; 24: 517526; Reider MJ: How much fire under the smoke? The effects of exposure to cocaine on the fetus. Can Med Assoc J 1994; 151: 1567-1569; Bruner M: Arrested for fetal abuse! Doctor's Rev (Toronto) July 1993, pp 75-80; Wilton JM: Compelled hospitalization and treatment during pregnancy: mental health statutes as models for legislation to protect children from prenatal drug and alcohol exposure. Family L Q 1991; 25: 149-70; Phibbs CS, Bateman DA, Schwartz RM: The neonatal costs of maternal cocaine use. J Am Med Assoc 1991; 266:1521-1526; Hingson R, Zuckerman B, Amaro H: Maternal marijuana use and neonatal outcome: uncertainty posed by self-reports. Am J Publ Health 1986; 76: 667669.
129. Skolnick AA: Collateral casualties climb in drug war. J Am Med Assoc 1994; 271: 1636-1639.
130. There is an important distinction between the medical and nonmedical use of drugs. There are both benefits and risks associated with the use of any drug. For someone using drugs for medicinal purposes, i.e., being treated with drugs, the benefits would be lost if the drugs were not used. For instance, the disease being treated may persist or worsen. In contrast, for someone not using drugs as medicines, i.e., using drugs recreationally, not using the drugs would not necessarily be risky or harmful, other than for the foregone benefits from using them. Indeed, not using the drugs could be beneficial because of the risks and harms that would be avoided by not using them.
131. With regard to the outcome of the clinical control of drugs, it has been noted that "[w]here heroin is made available to addicts in regulated contexts at low or minimal prices, as it is in Britain, no causal nexus with ancillary crime exists, and the level of drug addiction appears under control." [footnotes omitted] (Richards DAJ supra note 4, at p 166).
132. Blackwell J supra note 103, p 162-163 [footnotes omitted].
133. Berridge V: Britain: Problems change with social change-opium in the nineteenth century. In Edwards G, Arif A, Jaffe J (eds) supra note 51, pp 248-256; Richards DAJ supra note 4, footnote 107 at p 163.
134. National Institute for Drug Abuse: Impact of prescription drug control systems on medical practice and patient care: a summary of the NIDA Technical Review. In (Cooper JR, Czechowicz DJ, Molinari SP, Petersen RC eds) Impact of Prescription Drug Diversion Control Systems on Medical Practice and Patient Care. Rockville MD, US Public Health Service, Dep't of Health and Human Services, 1993, pp 1-17 [NIDA Research Monograph 131] and Joranson DE: Guiding principles of international and federal laws pertaining to medical use and diversion of controlled substances. Ibid, at pp 18-34.
135. Berridge mentions that harm minimization strategies are not new but have been implemented since the 1920's (Berridge V: Harm reduction: an historical perspective, Na tional AIDS Bulletin, May 1992, 30-34, at p 32). In addition, the WHO Expert Committee on Drug Dependence has stated:
In the past decade the concept at the heart of the twentieth meeting [of the WHO Expert Committee on Drug Dependence], of "preventing problems associated with the use of psychoactive dependence-producing drugs," has been put forward by some sectors of the research, prevention and treatment communities as "harm minimization" or "harm reduction." This approach has sometimes been contrasted with a singular focus on reducing drug use per se. Examples of harm reduction strategies include the provision of methadone and needle-exchange programmes for heroin users to reduce the risk of HIV infection, the provision of nicotine patches for tobacco users and attempts to reduce alcohol intoxication or its potential consequences by changing the environment in which people drink. WHO Expert Committee on Drug Dependence supra note 6, at p 3; see also, Buning E: The role of harm-reduction programmes in curbing the spread of HIV by drug injectors. In (Strang J, Stimson GV, eds) AIDS and Drug Misuse. Routledge, London, 1990, 153-167.
136. Ward J, Drake S, Hall W, Mattick R: Methadone maintenance and the human immunodeficiency virus: current issues in treatment and research. Br J Addict 1992; 87: 447-453.
137. McLellan AT, Arndt IO, Metzger DS, Woody GE, O'Brien CP: The effects of psychosocial services in substance abuse treatment. J Am Med Assoc 1993; 269: 1953-1959, and accompanying editorial: Glass RM: Methadone maintenance. New Research on a controversial treatment. J Am Med Assoc 1993; 269: 1995-1996.
138. Lurie P, Reingold AL: The Public Health Impact of Needle Exchange Programs in the United States and Abroad. San Francisco CA, Institute for Health Policy Studies Univ of California at San Francisco, October 1993.
139. Szasz T: Bad habits are not diseases. Lancet 1972; ii: 83-84.
140. With regard to the regulation of prescription drugs in the United States, see Lasagna L: Congress, the FDA, and new drug development: before and after 1962. Per spectives Biol Med 1989; 32: 322-343 and Joranson DE supra note 134; for regulation in Canada, see Solomon RM: Canada's federal drug legislation. In Blackwell JC, Erickson PG (eds) supra note 1, pp 117-128.
141. See supra note 125; Moon MM, Latessa EJ supra note 122; and, Porter L, Arif AE, Curran WJ: The Law and the Treatment of Drug- and Alcohol-dependent Persons. Geneva, World Health Organization, 1986.
142. This is illustrated by the frequent exclusion of drug users from clinical trials. As the Spanish Ribavirin Trial Group stated:
Drug abusers are widely regarded as unsuitable trial subjects, and some early AIDS trials specifically excluded these individuals .... Our results show that, for ribavirin at least, side-effects are no more frequent in this risk group and, contrary to popular belief, it is feasible to conduct large scale trials in drug addicts.
Spanish Ribavirin Trial Group: Comparison of ribavirin and placebo in CDC group III human immunodeficiency virus infection. Lancet 1991; 338: 6-9.
143 Gilmore N, Somerville MA supra note 10
144. With regard to American policy, see Richards DAJ supra note 4, at p 160-165.
145. Perhaps, the most florid example of the influence of this model was the U.S. government's attempt to prohibit alcohol. See, for example, Levine HG: Temperance and prohibition in America. In Edwards G, Arif A, Jaffe J (eds) supra note 51, at pp 187-200; and, Morgan JP supra note 73.
146. For a discussion of the use of criminal laws to control behavior, see Strader JK: Criminalization as a policy response. John Marshall L Rev 1994; 27: 435-447. See, also, Rexed B, Edmondson K, Khan 1, Samsom RJ supra note 109.
147. Bayer R supra note 100, at p 353 [footnote omitted].
148. The Globe and Mail (Toronto), 12 April 1995, at p A7.
149. Grund J-P C supra note 70.
150. "The impact of the economic model in the United States is illustrated by ... US business interests worried by the Chinese boycott of American goods, persuaded the US government to outlaw the manufacture of opium in the Philippines and to oppose politically European imports of opium from China." (Fox RW, Mathews I (eds) supra note 87, at p 70).
151. Wagstaff A, Maynard A supra note 47.
152. Schuster CR, Kilbey MM supra note 76, pp 769-786.
153. From a utilitarian perspective, it has been noted that: [T]he current division in American law between legal and illegal drugs distinguishes between drugs that influence levels of arousal (the stimulants and depressants) and those that affect the information-processing systems (the hallucinogens, LSD, mescaline, and hashish); the former class of drugs tends to be legal, the latter illegal. Students of American culture have observed that this distinction reflects an underlying value of facilitating work at particular tasks, as illustrated by the illegality of drugs that introduce multiple realities of experience, which may disturb focus on discrete productive or technological tasks. [footnotes omitted] (Richards DAJ supra note 4, at p 180).
154. Walsh B, Grant M: supra note 47, at pp 9-13.
155. Wagstaff A, Maynard A supra note 47, at p 1.
156. In the words of William Burroughs, "Junk is big business .... The junk virus is public health problem number one of the world today." [emphasis in original] Burroughs W supra note 36, at p xvi. And, in 1990, the American Bar Association stated: "Be it resolved, that the American Bar Association rescinds its prior marijuana policies of 1972-73 and deplores the use of marijuana and other harmful drugs, which have become one of the nation's most serious growing public health problems." (Evans DG supra note 20, at p 16). See, also, Gostin L supra note 7, and Cotton P supra note 8.
157. Newcomb DM: Substance abuse and control in the United States: ethical and legal issues. [footnotes omitted] Soc Sci Med 1992; 35: 471-479, at pp 471-472.
158. For two recent discussions of the public health implications relating to drug use, see Anderson P: Overview: public health, health promotion and addictive substances. Ad diction 1994, 89: 1523-1527, and Jonas S: Dealing with the drug problem. Preventive Med 1994; 23: 539-544. Nowhere is this more evident than in the spread of HIV among injection drug users, the spread of tuberculosis among this population, and the salience of public health strategies to control these diseases. Many of these strategies are those of harm reduction such as implementation of needle-syringe exchanges. See, for example, Gamella JF supra note 75.
159. This includes the tripartite prevention strategy, described by the Programme on Substance Abuse of the World Health Organization.
Primary prevention is aimed at ensuring that a disorder, process or problem will not occur.
Secondary prevention is aimed at identifying and terminating or modi fying for the better a disorder, process or problem at the earliest possible mo ment. Tertiary prevention is aimed at stopping or retarding the progress of a disorder, process or problem and its sequelae even though the basic condition persists.
(WHO Expert Committee on Drug Dependence supra note 6, at p 2). For a discussion of prevention and health promotion in the context of public health, see Last JM: Scope and methods of prevention. In Last JM, Wallace RB (eds) supra note 76, pp 3-10, and in the context of drug use, see Schuster CR, Kilbey MM supra note 76.
160. Gilmore N, Jargens R, Somerville MA, Almedal C supra note 17.
161. Leary VA supra note 2, at pp 39-40.
162. This approach should not be construed as "medicalizing" drug use. Rather, it recognizes the benefits in mobilizing an ideology and the long history of promoting and protecting health, despite the hazards of possible intrusiveness, paternalism, and police powers. Such an interpretation is reflected in the evolution of public health. In stating this, it is necessary to recognize that there does not appear to be a consensus definition of "public health." See for example Last JM : Ethics and public health policy. In Last JM Wallac e RB (eds) supra note 76, pp 1187-1196; Hensyl WR (ed) Stedman s Concise Medi cal Dictionary. 25th ed. Baltimore, Williams & Wilkins, 1990, p 686; Canadian Public Health Association: Mission Statement in Briefing Notes, August 1992. Ottawa, Canadian Public Health Association, 1992, p 1; Canadian Public Health Association: HIV & AIDS: A Public Health Perspective. Ottawa, Canadian Public Health Association, March 1992, p 4; Committee for the Study of the Future of Public Health, Division of Health Care Services, Institute of Medicine: The Future of Public Health. Washington DC, National Academy Press, 1988, pp 35-55; Pickett G, Hanlon JJ (eds): Public Health. Administration and Prac tice. 9th ed. Toronto, Times Mirror/Mosby College Printing, 1990, p 6; Ashton J, Seymour H: The New Public Health. The Liverpool Experience. Philadelphia, Open University Press, 1988, pp 15-26; Lalonde M: New Perspectives on the Health of Canadians. Ottawa,
Minister of Supply and Services Canada, 1975. Attempts to define public health, however, fail to capture fully the scope and complexity of public health. George Annas, in commenting on the Institute of Medicine's report, The Future of Public Health, has observed that: ,,[P]ublic health" is about as self-defined a term as one can find. Rather, the report's definitions and their shortcomings demonstrate that protecting and enhancing the health of the public involves such an enormous spectrum of social institutions that any attempt to put these definitions into some convenient bureaucratic box is unrealistic. (Annas GJ, Glantz LH, Scotch NA: Editorial: Back to the future: the IOM report reconsidered. Am J Publ Health 1991; 81: 835-837).
163. Schuster CR, Kilbey MM supra note 76 and Newcomb DM supra note 157.
164. See Gilmore N, Jitrgens R, Somerville MA, Almedal C supra note 17 with regard to the relationships between drug use, public health and human rights, and Mann JM supra note 2 with regard to the relationship between health and human rights.
165. Leary VA supra note 2, at pp 39-40.
166. Mann JM supra notes 2, at p 25.
167. See, for example, supra note 162.
168. Blackwell JC: Drug testing, the war on drugs, workers, and the workplace. Re search Advances Alcohol Drug Problems 1993; 2: 319-333.
169. Program on Substance Abuse: Strategy Document. World Health Organization, Geneva, 1990 [WHO Doc. No. WHO/PSA/90.1].
170. Stryker J: IV drug use and AIDS: public policy and dirty needles. J Health Politics Policy Law 1989; 719-740. See also supra note 16. The rapid emergence of HIV infection among injecting drug users in many countries has reinforced the personal inadequacy view of drug use, pointed out the profound needs of many drug users, emphasized the urgency to respond to these needs (particularly health needs), and showed that it is possible to respond effectively to some of these problems.
171. Expert Committee on AIDS and Prisons: HIV/AIDS in Prisons: Final Report of the Expert Committee on AIDS and Prisons. Ottawa, Ministry of Supply and Services, Government of Canada, 1994; Jonsen AR, Stryker J (eds): The Social Impact of AIDS in the United States. Washington DC, National Academy Press, 1993, pp 176-200.
172. Lurie P, Reingold AL supra note 138.
173. Friedma n SR, de Jong W, Wodak A: Community development as a response to H IV among drug injectors. AIDS 1993; 7 (suppl 1): S263-S269.
174. See Ward J, Drake S, Hall W, Mattick R supra note 136; Abadinsky H supra note 59.
175. Abadinsky H supra note 59, at pp 264-268.
176. Arnao G: Italian referendum deletes criminal sanctions for drug users. J Drug Issues 1994; 24: 483-487.
177. Evans DG supra note 20.
178. Abadinsky H supra note 59, pp 29-70. See also Richards DAJ supra note 4, footnote 96 at 163.
179. The development of the major international legal instruments aimed at controlling drug use are described in United Nations supra note 106, at pp 63-75 and in Fox R, Mathews I (eds) supra note 87.
180. Fluss SS: Human Rights and Responsibilities. Unpublished paper presented at a World Health Organization Advisory Group Meeting on Policies, Legislation and Programmes on Dependence and Harmful Use of Drugs and Alcohol, Cambridge MA, 31 Jan-2 Feb 1994. [footnotes omitted] (Mr SS Fluss is Chief, Health Legislation, WHO, Geneva).
181. International Narcotics Control Board supra note 12.
182. See, for examp le, Shahandeh B: Rehabilitation Approaches to Drug and Alcohol Depende nce. Geneva, International Labour Office, 1985; Porter L, Arif AE, Curran WJ supra note 141; Curran WJ, Arif AE, Jayasuriya DC: Guidelines for assessing and revising national legislation on treatment of drug- and alcohol-dependent persons. !nt Dig Hith Law 1987; 38 (Suppl 1): 1-48; Hubbard RL, Marsden ME, Rachal JV, Harwood HJ, Cavanagh ER, Ginzburg HIM Drug Abuse Treatment. A National Study of Effectiveness. Chapel Hill NC, Univ of N Carolina Press, 1989.
183. Goldstein A, Kalant H supra note 34, footnote 59, at p 1514 and Gostin L supra note 7, footnote 29, at p 387.
184. Of the $14.6 billion requested from Congress for the National Drug Control Strategy in the United States in fiscal year 1995-1996, 64% would be allocated for supply reduction and 36% for demand reduction. National Drug Control Strategy: Press release: 1995 National Drug Control Strategy Seeks Largest Budget Ever. Washington DC, National Criminal Justice Reference Service, 7 Feb 1995 [accessed via URL: gopher:// ncjrs.aspensys.com:71/11/drugs/dcd press/drugs.txt; 7 Aug 1995).
185. Government of Canada: Action on Drug Abuse. Making a Difference. Ottawa, Min Supply and Services, 1988 (Cat. H39-127/1988), at p 7.
186. With regard to the evolution of legal and public policy responses to drug use in various countries, see Wardlaw G supra note 39, at p 6. See also Musto DF: Historical perspectives on alcohol and drug abuse. In Lowinson JH, Ruiz P, Millman RB, Langrod JG (eds) supra note 28, pp 2-14, at p 3; Evans DG supra note 20; and Levine HG supra note 145.
187. For a discussion of the major legislative and policy responses to drug use, see Stephens RC: Mind-altering Drugs [sic] Use, Abuse, and Treatment. Beverly Hills CA, Sage Publishing, 1987, at p 57; Abadinsky H supra note 59; Duke SB, Gross AC: America's Longest War. Rethinking Our Tragic Crusade Against Drugs. GP Putnam's Sans, New York NY, 1993; Barnett RE: Bad trip: drug prohibition and the weakness of public policy. Yale L J 1994;103: 2593-2630; Richards DAJ supra note 4, at pp 163-164; Henderson Jr RJ: Addiction as disability: the protection of alcoholics and drug addicts under the Americans with Disabilities Act of 1990. Vanderbilt L J 1991; 44: 713-774; Hubbard RL, Marsden ME, Rachal .IV, Harwood HJ, Cavanagh ER, Ginzburg HM supra note 182,1990; Parmet WE: Discrimination and disability: the challenges of the ADA. Law Med Health Care; 18: 331344, at p 337.
188. Wardlaw G supra note 39, at p 15 (emphasis in original). See, also, the discussion of user accountability in Gostin LO supra note 7, at 386.
189: Abadinsky H supra note 59, at p 58.
190: For a discussion of the U.S. "War on Drugs", see Mandel J, Feldman HW: The social history of teenage drug use. In (Beschner G, Friedman AS eds) Teen Drug Use. Toronto ON, Lexington Books, 1986, pp 19-42. For a discussion of the impact of the U.S.A, on domestic law and policy of other nations, see Fox R, Mathews I supra note 87.
191. ,` Canadian responses to drug use prohibit the cultivation, production, sale, and possession of proscribed drugs. These responses include two federal laws, the Narcotic Control Act' of 1970 and the Food and Drugs Act of 1970, which set out offenses and penalties and also' contain special police powers relating to entry, search, seizure, and forfeiture but not procedural rules. Procedural rules are covered by the Criminal Code, which also addresses driving under the influence of drugs, including alcohol. (See, for example, Solomon RM supra note 140, and Giffen PJ, Endicott S, Lambert S: Panic and Indifference. The Politics of Canada's Drug Laws. Ottawa ON, Canadian Centre on Substance Abuse, 1991).
A five-year National Drug Strategy was announced in 1988, and renewed for an additional five years in 1993. (Skirow J: Epilogue. Canada's National Drug Strategy. In Giffen PJ, Endicott S, Lambert S ibid). Disillusionment with supply-side efforts to control drug use, in particular, its ineffectiveness, costliness, and harmfulness, has led to a growing momentum to de-emphasize criminal justice approaches and emphasize efforts aimed at reducing the demand for drugs, in particular harm reduction ones. One consequence of this shift was that the Canadian Parliament, in 1993 and again in 1994, attempted to revise and harmonize its federal drug control laws to comply with the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988 and the Cana dian Charter of Rights and Freedoms. Bill C-85 lapsed when Parliament rose in 1993 and, so far, Bill C-7 has not yet progressed to a final reading. For a discussion of this response, see Usprich SJ, Solomon RM: A critique of the proposed Psychoactive Drug Control Act. Crim L Q 1993; 35: 211-240.
192. Usprich SJ, Solomon RM ibid.
193. An example of this response is the resolution of the mayors of Amsterdam, Frankfurt, Hamburg, and Zurich at the Conference of European Cities at the Centre of Illegal Tirade in Drugs, Frankfurt am Main, 20-22 November 1990, calling for a revision of present legal and policy responses to drug use. Frankfurter Resolution of the Conference of Euro pean Cities at the Centre of Illegal Trade in Drugs, Frankfurt am Main, 20-22 November 1990, available at URL = http://www.xs4all.nl/-mlap/press/enndpl.html on 28 July 1995. Also, see the address of K. Schmoke, Mayor of Baltimore MD to the 105th Annual Meeting of the American Association of Medical Colleges, Boston MA, 28 October - 3 November, 1994, which is reprinted in Schmoke K: Medicalizing the war on drugs. Acad Med 1995; 70: 355-358.
194. Engelsman EL: Drug misuse and the Dutch. Br Med J 1991; 302: 484-485; Engelsman EL: Overseas experience: Netherlands. In Fox R, Mathews I (eds) supra note 87, at pp 196-205; Engelsman EL: Dutch policy on the management of drug-related problems. Br J Addict 1989; 84: 211-218; Ministry of Welfare, Health and Cultural Affairs. The Drug Abuse Situation in the Netherlands. Rijswijk NL, Ministry of Welfare, Health and Cultural Affairs, September 1991.
195. Recently, France objected to the Netherlands policy, threatening to obstruct im plementation of the Schengen Agreement if the policy is not modified to comply with the polices of its neighbors. See, Sissons S: Drug threat to Schengen. The European 23-29 June 1995, p 4.
196. See Berridge V supra note 16; Marks J: Overseas experience: England. Drugs in England: the Merseyside experience. In Fox R, Mathews I (eds) supra note 87, at pp 184195.
197. Wardlaw G supra note 39, at p 26.
198. Abadinsky H supra note 59, at pp 264-268.
199. Edwards G: What drives British drug policies? Br J Addict 1989; 84: 219-226.
With regard to self-exclusion from enjoying or exercising one's rights, see Merton RK: The self-fulfilling prophecy. In (Coser LA, ed) The Pleasures of Sociology, New American Library, Scarborough ON, 1980, pp 29-47.
210. Some of the impairments directly attributable to drug use include: demotivation and disregard for the user's own health (especially when there is intense compulsive drug use); prolonged craving and withdrawal disorders; impaired memory function from chronic
217. The term "excessive" has been chosen to recognize that there is probably no human decision or activity which does not have consequences on others, including society in general. These consequences may be beneficial or harmful or both, and direct or indirect or both. Drug use is not considered to be excessive when its benefits for the user and others outweigh its harms, and when its harms do not exceed those which can result from other private and voluntary activities, such as playing sports, leisure activities, reading, having an occasional drink, etc. When the harms from drug use are not judged to be "excessive" by both of these criteria, then it can be considered to be an "innocuous" activity. Because there is a continuum of drug use, ranging from occasional or experimental drug use to life-imperiling compulsive use, and because benefits and harms can vary depending on the drug used, the user, and the setting in which it is used, it is not possible to demarcate precisely when drug use may or may not be innocuous. Generally, however, drug use is likely to be innocuous by these criteria when it is not persistent and especially when it is not compulsive. This is reflected in the distinction that is often made between drug use and drug abuse.
218. In this respect, Art. 24 of the Universal Declaration of Human Rights states that, [E]veryone has the right rest and leisure, including reasonable limitation of working hours and periodic holidays with pay."
219. Skydiving and bungee jumping are immediately apparent as risky adventures, providing great personal reward for the person doing them without appreciable direct benefits for others. Nonetheless, they are tolerated by society.
220. Glass RM: Editorial: Caffeine dependence. What are the implications? J Am Med As soc 1994; 272: 1065-1066.
221. See Nadelmann EA: supra note 42 and Gold MS, Schuchard K, Gleaton T: supra note 76.
222. Coventry KR, Brown RIF: Sensation seeking, gambling and gambling addictions. Addictions 1993; 88: 541-554; Volberg RA: The prevalence and demographics of pathological gamblers: implications for public health. Am J Publ Health 1994; 84: 237-241; and, Editorial supra note 8.
223. BMA Professional and Scientific Division supra note 7, in particular pp 95-105.
224. Public morality, reflecting a moral inadequacy model of drug use, is often claimed as a basis to condemn and punish drug use. (See, for example, the discussion about public
226. Winick C: Social behavior, public policy, and nonharmful drug use. Millbank Q 1991; 69 (3): 437-459.
227. Eisenhandler J, Drucker E: Opiate dependency among the subscribers of a New York area private insurance plan. J Am Med Assoc 1993; 269: 2890-2891.
228. Husak DN supra note 4, footnote 108 at p 128 [footnote omitted].
229. Gold MS, Schuchard K, Gleaton T: supra note 76.
230. Shah CP: Public Health and Preventive Medicine in Canada. Toronto, Univ of Toronto Press, 1994, at p 90.
232. In this context, it is important to distinguish between the risks (or potential harms) and harms from drug use, in particular, unavoidable harms which may be reducible but nonetheless unavoidable. When drug use is sporadic or when it is persistent but noncompulsive, the harms from such use are generally foreseeable and avoidable. That is, drug use ca n be risky but not necessarily harmful.
233. For a discussion of privacy, see Meyers DT: Self, Society, and Personal Choice. New York NY, Columbia University Press, 1989.
234. It is important to distinguish between prohibiting such activities, as happens with drug use, and regulating them in order to make them safe or safer (that is, preventing or reducing their harmful consequences). Regulation can include, for example, the labelling of pharmaceuticals, overseeing the quality of skis, rollerblades, and skateboards, permitting swimming only in the presence of a lifeguard, restricting betting and drinking hours, and requiring breathalyser testing.
235. See the discussion on privacy supra note 208 and Mitchell CN supra note 63. With regard to U.S. courts, it has been noted by Bakalar and Grinspoon that:
The courts will not provide a judicial remedy for every dubious law, and they will rarely invalidate the legislature's classification of crimes. They would not overrule a state law that made picking pockets a more serious crime than shoplifting, or a law that required safety devices on chainsaws but not on power mowers. For similar reasons, they have not been willing to overrule penalties for marihuana possession and sale on the ground that they are too severe in relation to the penalties for other drugs or the dangers of marihuana itself. They have upheld state laws imposing a considerably longer maximum sentence for the sale of cocaine than for the sale of amphetamines, which are pharmacologically similar. And the special treatment of alcohol is not a constitutional problem because the 'IWentyFirst Amendment, which repealed Prohibition, has been interpreted so that it supersedes other applicable constitutional provisions and gives the states full power over alcohol regulation. The problem of distinguishing the extent of harm ... may reduce the effectiveness of criminal laws on drug use and sale, but it has not been made into a constitutional obstacle. (Bakalar JB, Grinspoon L: Drug Control in a Free Society. New York NY, Cambridge Univ Press, 1984, at pp 118-119).
236. Solomon RM supra note 140, at p 216.
237. Ibid, at p 217.
238. Husak DN supra note 4, at p 142.
239. Richards, citing U.S.A. court decisions, concludes that "[cjourts have, however, invoked privacy arguments in support of mental patients' rights to refuse drugs" and that "[t]hese cases, in their vindication of the right to control one's mental state, suggest a larger privacy right relevant to drug use." (Richards DAJ supra note 4, footnote 279, at p 210).
240. Friedelbaum SH: Human Rights in the States. New Directions in Constitutional Policy Making. New York NY, Greenwood Press, 1988, at p 77, citing Ravin v. State, 537 P.2d 494, 509 (Alas. 1975). See, also, Roth R: Was legalization a bad idea? Alaska: one state's war on drugs. Human Rights 1990; 17(2): 29.
241. Such an approach is consistent with the positive content obligations pursuant to Art. 12 of the International Covenant on Economic, Social and Cultural Rights: The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. 2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right include those necessary for: (a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child; (b) The improvement of all aspects of environmental and industrial hygiene; (c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases; (d) The creation of conditions which would assure to all medical service and medical attention in the extent of sickness. In addition, see Leary VA supra note 2.
242. See, for example, Jonas S supra note 158 and Gostin L: Compulsory treatment for drug-dependent persons: justifications for a public health approach to drug dependency. Millbank Q 1991; 69 (4): 561-593.
243. See, for example, Richards DAJ supra note 4; Mitchell CN supra note 63, at 197212; Greenstein HM, DiBianco PE: Marijuana laws-a crime against humanity. Notre Dame L J 1972; 48: 314-339.
244. Alcohol is not the only drug involved, as shown by the recent report of driving under the influence of illicit drugs such as cannabis and cocaine (Brookoff D, Cook CS, Williams C, Mann CS: Testing reckless drivers for cocaine and marijuana. N Engl J Med 1994; 331: 518-522).
245. See Nadelmann EA: supra note 42; Gold MS, Schuchard K, Gleaton T: supra note 76; and Goldstein A, Kalant H supra note 34.
246. Richards notes that: At most, paternalistic concern for forms of irreparable harm might dictate appropriate forms of regulation to insure that drugs are available only to mature persons who understand, critically evaluate and voluntarily accept the risks. To minimize pointless risks, such regulations might insure that certain drugs, LSD, for example, are taken only under appropriate supervision. In general, however, there is no ground of just paternalism for an absolute prohibition of such drugs. [footnote omitted] (Richards DAJ supra note 4, at p 184).
247. Gilmore N, Somerville MA supra note 10.
248. Nadelmann EA supra note 42. In addition, there is a growing appreciation by the public of the distinctions between drug use and trafficking and between supply and demand reduction and their consequences. This is reflected in the recent Italian referendum on drug use (see Arnao G supra note 176) and recent survey results from the United States which disclosed that: [T]he public prefers a balanced approach, mixing law enforcement, prevention, and treatment. A majority of Americans want criminal sanctions focused on drug dealers, but intensive help for drug users, or those vulnerable to drug abuse. When asked specifically if they wanted more spent on a range of overseas and border interdiction efforts, a remarkable 74 percent of the respondents chose "programs in (their) community for drug education, treatment, prevention, and law enforcement." When given the choice of what to do about drug users, respondents by almost a two-to-one ratio chose court-supervised treatment over prison. (Anonymous: Drug use occupies emergency rooms, public opinion polls. Publ Health Rep 1994;109: 586-587).
249. Many of the author's colleagues who work on the front-lines with drug users, have reported the devastating consequences of using drugs, in particular, the use of cocainecrack. This would argue strongly for stringent control of some drugs, not because the risk of dependency is greater for these users, but rather because when dependence occurs it is especially harmful and extremely difficult for these individuals to control their drug use. In contrast, Robins calls attention to the "self-fulfilling" prophecy of viewing and studying drug use based upon drug users who require treatment or other interventions, rather than on the conclusions of population-based studies which would include far more people who do not have the problems that those who require treatment exhibit. (Robins LN: supra note 225). Furthermore: [o]ften such studies rest on a limited sample of people, which the researcher mistakenly believes to be typical of the research population a[t] large. For example, a researcher or observer might mistakenly infer from the class of drug users who come to the attention of the criminal law or seek therapeutic help that all drug users are intrinsically criminal or in need of therapeutic help. (Richards DAJ supra note 4, footnote 273, at p 209). Also, see Husak DN supra note 4, at pp ,100-117 and pp 130-131; and, Goldstein A, Kalant H supra note 34.
250. Ten Have HAMJ: Drug addiction, society and health care ethics. In (Gillon R, ed) Principles of Health Care Ethics. London, John Wiley & Sons, 1994, pp 895-902, at 900901.
251. Husak DN supra note 4, at p 142.
252. Prohibition is an "either/or" response to drug use. An activity such as possessing a drug is either prohibited or it is not, although there can be exceptions or exemptions to these alternatives. As a result, prohibition does not accommodate the risks involved but demands that they be avoided entirely by avoiding drug use. It fails to address reducing risk, deprives people of the benefits of using drugs in a relatively harmless way, imposes risks and harms on them if they attempt to use these drugs, and penalizes drug use which is disproportionate to the harms involved.
253. Apart from other considerations, prohibition penalizes individuals who use drugs in an innocuous manner in order to protect (and benefit) individuals who might use them in a harmful manner. This also protects society from the harms that may result when drugs are used in a harmful manner, particularly by avoiding or minimizing the costs that would be incurred to correct or redress these harms. On the other hand, regulating drugs so that they can be used in a safe manner can minimize interference for the former while strengthening efforts to minimize risks and to prevent or reduce harms for the latter.
254. See supra note 128.
255. See, for example, King PA: Helping women helping children: drug policy and future generations. Millbank Q 1991; 69 (4): 595-621. Further: [pjarenthood is a role embedded in social institutions of family and education and regulated by principles of justice that assess rights and duties, benefits and burdens, in terms of fairness and equity to parents, children and society in general. Voluntarily undertaking parenthood gives rise to, among other things, a social obligation to perform one's just parental role; in addition there are natural duties That, likewise require appropriate action. It is a prima facie violation of such moral obligations to take drugs that impair the well-being of the unborn child. To the extent that grave effects of such kinds may occur, drug taking by parents during the relevant period of risk may be appropriately regulated. [footnotes omitted] (Richards DAJ supra note 4, at p 178).
256. Denison J: The efficacy and constitutionality of criminal punishment for maternal substance abuse. S Calif L Rev 1991; 64; 1103-41.
257. Beschner GB, Friedman AS supra note 190. The seriousness of this problem is illustrated.by recent findings in the United States. Since 1991, cannabis, cocaine, and her oin use have steadily increased among 8th grade (ca. 13 year old) students. In a 1995 national survey, more than one-fourth of the students reported that they had used one or more illicit drugs during their lifetime; when gasoline or glue sniffing was included in the data, more than one-third of the students reported a lifetime history of using at least one of these drugs. 2% of the students reported having used heroin at some time in their lives, a similar proportion had used cocaine, and 13% had used cannabis in the year preceding the survey., When 12th grade students were surveyed, almost 31% admitted they had used cannabis in the preceding year (26% in 1993 and 22% in 1992) and over 45% reported having used one or more illicit drugs at least once during their lifetime. In contrast, alcohol use for 8th, 10th, and 12th grade students had remained stable during the past year. (Swan N: Marijuana, other drug use among teens continues to rise. NIDA News 1995;10(2), Cited at URL = http://www.nida.nih.gov/NIDA_NOTES/NNIndex.htmi).
258. Nurco DN, Batter MB, Kinlock T: Vulnerability to narcotic addiction: preliminary findings. J Drug Issues 1994; 24: 293-314.
259 See supra note 241.
260. Carroll JFX: Secondary prevention: a pragmatic approach to the problem of substance abuse among adolescents. In Beschner GB, Friedman AS (eds) supra note 190, pp 163-184.
261. An example of such an intervention was the efforts of the U.S. Centers for Disease Control (CDC) to control an outbreak of fulminant hepatitis in New Bern, North Carolina in 1980. The outbreak resulted when students injecting cocaine shared their injection equipment without cleaning it between uses. The outbreak was controlled by persuading students to forgo cocaine use via injection. For an account of this response, see Garrett L: The Coming Plague. Newly Emerging Diseases in a World Out of Balance. New York NY, Farrar, Strauss and Giroux, 1994, at p 280.
262. Bayer R: Private Acts, Social Consequences. AIDS and the Politics of Public Health. New Brunswick NJ, Rutgers University Press, 1989.
263. . See Gostin L supra note 242.
264. This points out another important concern, namely, the confidentiality of personal information relating to drug use. In New Zealand, this was addressed by amending the Evidence Amendment Act 1989 to extend legal privilege expressly to such information when it was communicated to specified health care professionals, as follows: 33. Disclosure in criminal proceeding of communication to medical practitioner or clinical psychologist-(1) Subject to subsection (2) of this section, no registered medical practitioner and no clinical psychologist shall disclose in any criminal proceeding any protected communication made to him by a patient, being the defendant in the proceeding, except with the consent of the patient. (2) This section shall not apply to any communication made for any criminal purpose . (3) In subsection (1) of this section "protected communication" means a communication made to a registered medical practitioner or a clinical psychologist by a patient who believes that the communication is necessary to enable the registered medical practitioner or clinical psychologist to examine, treat, or act for the patient for (a) Drug dependency; or (b) Any other condition or behaviour that manifests itself in criminal conduct; (Collins DB: Medical Law in New Zealand. Wellington NZ, Brooker & Friend, 1992, at pp 20-21). A similar concern may have contributed to decriminalizing the transmission of sexually transmitted diseases in Canada. (see supra note 209).
265. Smart RG, Adlaf EM, Walsh GM: Adolescent drug sellers: trends, characteristics and profiles. Br J Addict 1992; 87: 1561-1570; Fields AB: Weedslingers: young black marijuana dealers. In Beschner G, Friedman AS (eds) supra note 190, pp 85-104; Morgan JP supra note 73.
266. Supra note 8, at p 13.
267. Room R: Alcohol control and public health. Ann Rev Publ Health 1984; 5: 293 317. As an Australian study of legal and policy responses to drug use noted: Many people debating drug policy fail to separate the effects of drug use from those of trying to suppress it. Thus it is important to recognise that many of the ill effects attributed to drug use (such as crime, corruption, cost impacts on criminal justice systems, etc.) are largely those resulting from a policy of prohibition rather than the ill effects of drug use per se (which would include the health effects on the user, impacts on families, productivity, and so on). In the context of examining the US drug policy, however, it is important to recognise that the extent and scale of drug use are such as to engender considerable direct costs and that it should not seem unreasonable to at least attempt to intervene by way of prohibition and to accept the costs of doing so as an inevitable cost of avoiding the problem escalating to even worse proportions. It then becomes a judgment on the basis of experience with the policy as to whether or not the costs of prohibition are worth incurring in order to avoid the direct costs of drug use. Much of the present debate over directions in drug policy in the US (and in Australia and other countries) centres on this question. [emphasis in the original] (Ward)aw G supra note 39, at p 7).
268. In response to a blackmarket in untaxed cigarettes in Canada, resulting from high tobacco taxes, it was decided that lowering the cigarette tax would be more effective than criminal justice approaches in helping to eradicate this blackmarket.
269. Wardlaw G supra note 39.
270. Osterberg E: Current approaches to limit alcohol abuse and the negative consequences of use: A comparative overview of available options and an assessment of proven effectiveness. In Aasland OG supra note 67, pp 266-299, at p 278.
271. Kaplan HI, Sadock BJ, Grebb JA supra note 92, at p 383. 272. Jonas S supra note 158, at p 539.
273. Kaplan HI, Saddock BJ, Grebb JA supra note 92, at p 383. 274. Jonas S supra note 158 and Bayer R supra note 100.
275. Anonymous: Editorial. Of auctions, dilemmas, and models of escalation behaviour. Lancet 1989; ii; 1487-1488.
276. Wardlaw G supra note 39, at p 13 [emphasis in the original].
277. Nadelmann E, Wenner JS: Toward a sane national drug policy. Rolling Stone 5 May 1994, pp 26-28, at pp 27-28.
278. Examples of when interventions may be justifiable include surveillance and searches related to drug trafficking, banning driving and other potentially hazardous activities when under the influence of drugs, preventing the use of drugs in certain milieus, such as at work, in school, or when playing sports, the use of drugs by women when they are pregnant, and regulation of drug use such as the sale or consumption of tobacco, alcohol, or other drugs in particular venues.
279. Moore M supra note 90.
280. van Banning TRG: Human Rights reference Handbook. den Haag NL, Netherlands Ministry of Foreign Affairs, 1992, p 3.
281. "Vulnerability refers to the observation that individuals are differentially at risk for engaging in drug use and, in particular, for making the transition from drug use to drug abuse." (Glantz M, Pickens R: Introduction. In Glantz M, Pickens R (eds) supra note 16, pp 1-14, at p 3). See also, Tarter RE, Mazzich AC: Ontogeny of substance abuse: perspectives and findings. Ibid, pp 149-177, at p 174.
282. Hammer T, Vaglum P: Initiation, continuation or discontinuation of cannabis use in the general population. Br J Addict 1990; 85: 899-909.
283. "[P]ersonal empowerment is the antithesis of vulnerability." (Mann JM, Tarantola DJM, Netter TW: AIDS in the World. Harvard University Press, Cambridge MA, 1992, p 579). Vulnerability is a concept which can also be applied to groups, communities or populations whose members are at risk of using drugs or of becoming dependent upon them. Collective vulnerability is determined by- features of the collective such as the biological, psychological, and sociological characteristics of the group population, and societal characteristics including the social construction of drug use and of the collective group or population. In other words, collective vulnerability represents those characteristics or determinants of drug use or of the collective, itself, that are common to all members of that collective in which drug use is prevalent. These may, for example, include people with low self-esteem, marginalized populations, minority groups, people of low socio-economic status, tourists, particular groups of workers, athletes or musicians or other performers. It includes both the factors or influences which can promote or lead to drug use and those which can prevent or reduce drug use and its harms. See, for example, Clayton RR supra note 118.
284. For a discussion of risk, see: BMA Professional and Scientific Division supra note 7; Koshland DE: Immortality and risk assessment. Science 1987; 236: 241; Wilson R, Crouch EAC: Risk assessment and comparisons: an introduction. Science 1987; 236: 267270; Ames BN, Magaw R, Gold LS: Ranking possible carcinogenic hazards. Science 1987; 236: 271-279; Slovick P: Perception of risk. Science 1987; 236: 280-285; Russell M, Gruber M: Risk assessment in environmental policy-making. Science 1987; 236: 286-290; Lave LB: Health and safety risk analyses: information for better decisions. Science 1987; 236: 291295; and Zeckhauser RJ, Viscusi WK: Risk within reason. Science 1987; 248: 559-564.
285. Blackwell JC, Erickson PG (eds) supra note 1, at p 134-135.
286. See, for example, Wu AW, Lamping DL: Assessment of quality of life in HIV disease. AIDS 1994; 8 (suppl 1): S349-5359; Gill TM, Feinstein AR: A critical appraisal of quality-of-life measurements. J Am Med Assoc 1994; 272: 619-626, and the accompanying commentary: Guyatt GH, Cook DJ: Health status, quality of life, and the individual. J Am Med Assoc 1994; 272: 630-631; Fitzpatrick R, Fletcher A, Gore S, Jones D, Spiegelhalter D, Cox D: Quality of life measures in health care. I: Applications and issues in assessment. Br Med J 1992; 305: 1074-1077; Fletcher A, Gore S, Jones D, Fitzpatrick R, Spiegelhalter D, Cox D: Quality of life measures in health care. II: Design, analysis, and interpretation. Br Med J 1992; 305: 1145-1148; Spiegelhalter D, Gore SM, Fitzpatrick R, Fletcher AE, Jones DR, Cox D: Quality of life measures in health care. III: resource allocation. Br Med J 1992; 305: 1205-1209.
287. Wu AW, Lamping DL lbid, at p S350.
288. For a discussion of the heterogeneity of drug use, see Robertson JR, Ronald PJM, Raab GM, Ross AJ, Parpia T: Deaths, HIV infection, abstinence, and other outcomes in a cohort of injecting drug users followed up for 10 years. Br Med J 1994; 309: 369-372 and Kandel DB, Davies M: Progression to regular marijuana involvement: phenomenology and risk factors for near-daily use. In Glantz M, Pickens R (eds) supra note 16, pp 211-245.
289. Kornblum W: Drug legalization and the minority poor. Millbank Q 1991; 69 (3): 415-435.
290. Kandel DB: The social demography of drug use. Millbank Q 1991; 69 (3): 365-414.
291. Jarvik ME supra note 8, at p 388 [footnotes omitted]. Also, see Schuster CR, Kilbey MM supra note 76.
292. Cheadle A, Pearson D, Wagner E, Psaty BM, Diehr P, Koepsell T: Relationship between socioeconomic status, health status, and lifestyle practices of American Indians: evidence from a plains reservation population. Publ Health Rep 1994; 109: 405-413, 412413.
293. Feinstein AR: Clinimetric perspectives. J Chronic Dis 1987; 40: 635-640. With regard to attempts to quantify human rights abuses, see Humana C: World Human Rights Guide. Third Edition. New York NY, Oxford Univ Press, 1992, pp 5-10.
294. It is interesting that the United Nations recognizes six factors which contribute to drug use (United Nations supra note 106, p 16-17). These are peer pressure, curiosity, ignorance, alienation, changing social structures, urbanization, and unemployment. With regard to ignorance, the U.N. has stated that "[g]overnments, scientists, experts and others have had only limited success in communicating accurate information." (Ibid., at p 16). With regard to urbanization and unemployment, the U.N. has stated that: [T]he exodus of people from rural to urban areas in search of work and a better life continues. Often, these people face certain obstacles for the first time. Separation from family members and traditional values and support structures can lead to loneliness, isolation and despair; a lack of schooling and/or skills often translates to unemployment; the nature of city life, in general, may be difficult to adjust to. Many of the problems associated with creating a new life-style can lead individuals to turn to drugs. (Ibid, at p 17. Despite such problems, the U.N. appears to discount the impact of vulnerability which can predispose individuals to use drugs and persist in their use, stating that: The drug user must accept the risks associated with drug abuse-those related to health and other aspects of life. When the risks become reality, the drug user cannot claim to be a victim of society; on the contrary, society, the community and the family are all victims of the abuser. (Ibid, at 49).
295. American Psychiatric Association supra note 210, pp 123-163 and 165-185; Kaplan HI, Saddock BJ, Grebb JA supra note 92, at pp 397-398; p 426; and, pp 441-442.
296. See, for example, Nurco DN, Balter MB, Kinlock T supra note 258. These values in clude normative ones relating to the use of drugs, including norms relating to abstinence and to impairment. For a discussion of this issue, see Treno AJ, Hennessy M: The difference context makes: Americans' views on abstinence and impairment. Br J Addict 1992; 87: 1445-1456.
297. For example, drug use in certain neighborhoods in New York has been found to be associated with blacks and hispanics, implying a relationship with socio-economic status, in particular, inner city poverty, unemployment, powerlessness, violence, and crime. However, these racial characteristics are only markers for people who are more likely to live in an environment where the vulnerability to use drugs is increased. It is this characteristic, and not race or national origin, which is the relevant association. See, for example, LillieBlanton M, Anthony JC, Schuster CR: Probing the meaning of racial/ethnic group comparisons in crack cocaine smoking. J Am Med Assoc 1993; 269: 993-997 and the editorial accompanying this article, Fullilove MT: Perceptions and misperceptions of race and drug use. J Am Med Assoc 1993; 269: 1034.
298. In the context of drug use, the HIV epidemic has shown the inadequacy of health care services, in particular, methadone maintenance, counselling and education. See, for example, Nadelmann EA supra note 42; Wartenberg AA: Editorial: "Into Whatever Houses I Enter". HIV and injecting drug use. J Am Med Assoc 1994; 271: 151-152.
299. Husak DN supra note 4, at p 127.
300. Newcomb DM supra note 157, at p 471. Chief Gates "was referring, of course, to users of illicit drugs, such as marijuana and cocaine, and certainly not to abusers of licit drugs, such as nicotine and alcohol." Ibid.
301. Gilmore N, Somerville MA supra note 10.
302. Despouy L supra note 211, at p 15.
303. For instance, see Fluss SS supra note 180 and Despouy L ibid.
304. Currently, there is still no internationally accepted definition of the term "disability." The Committee on Economic, Social and Cultural rights, however, has stated that, for present purposes, it is sufficient to rely upon the definition the Committee adopted in the Standard Rules in 1993. The Rules provide that: "The term `disability' summarizes a great number of different functional limitations occurring in any population .... People may be disabled by physical, intellectual, or sensory impairment, medical conditions or mental illness. Such impairments, conditions or illnesses may be permanent or transitory in nature." (Committee on Economic, Social and Cultural Rights: Implementation of the International Covenant on Economic, Social and Cultural Rights. General comment no. 5 (1994). Persons with disabilities. Int'1 Human Rights Reports 1995; 2: 261-270 at p 262). For a discussion of other definitions, see the Declaration an the Rights of Disabled Persons (United Nations General Assembly Resolution 34/47 of 9 December 1975) and Despouy L supra note 211, at p 11.
305. Fluss calls attention to this issue in relation to international law, in particular, the Declaration on the Rights of Disabled Persons, but notes that it is unclear whether or not dr ug users are included implicitly in such provisions. (Fluss SS: supra note 180). Mindful of t his problem, the UN General Assembly adopted standard rules on the equalization of opportunities for persons with disabilities. (Resolution 48/96 Annex. Standard Rules on the Equalization of Opportunities for Persons with Disabilities. New York, United Nations, 20 December 1993).
306. The author is grateful to Mr. A.C. Hendriks, Vakgroep Bestuursrecht, Faculteit der Rechtgeleerheid, Universiteit van Amsterdam, The Netherlands, for pointing out this issue.
307. As Article 25.1 of the Universal Declaration on Human Rights states: Everyone has the right to a standard of living adequate for the health and wellbeing of himself and of his family, including food, clothing, housing, and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. Ibid. For a discussion of disability in international legal instruments and policy, see Despouy L supra note 211, pp 4-10. Fluss points out that among these instruments are mental health laws but "[a]s far as [Fluss] is aware it is unclear whether drug-dependent persons and persons suffering from alcohol-related problems are to be assimilated to 'persons with a mental illness' in accordance with the Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care." (Resolution 46/119 of the General Assembly of the United Nations, adopted 18 December 1991) (Fluss SS supra note 180).
308. It was only during the course [of the] 19806 that international bodies and governments started to acknowledge that disabled people are equal in worth and dignity, irrespective of their "differences." This led to a reappraisal of the principles of equality and non-discrimination to protect and promote the rights of "different" people. Hendriks A, Degener T: The evolution of a European perspective on disability legislation. European J Health Law 1994; 1: 1-24, at pp 12-13 [footnotes omitted].
309. See supra note 304.
310. Haggard LK: Reasonable accommodation of individuals with mental disabilities and psychoactive substance use disorders under Title I of the Americans with Disabilities Act. Wash U J Urban Contemp Law 1993; 43: 343-90.
311. This is illustrated by the statement of the United Nations that "[d]rug addiction sh ould be viewed as a chronic recurring disorder which responds to treatment. Several t reatment episodes may be necessary before long-term abstinence is realized. The treatment of a drug addict does not end until the addict is reintegrated into society." (United Nations: Declaration of the International Conference on Drug Abuse and Illicit Trafficking and Comprehensive Multidisciplinary Outline of Future Activities in Drug Abuse Control. United Nations, New York NY, 1988, at p 86).
312. The rapidity with which reexposure to a drug elicits dependency in persons who have been dependent on that drug is considered to be a manifestation of a longer lasting effect of drugs on neural mechanisms. "Once drug use turns into an addiction, `apparently there are some long-term changes there [in the brain], like memory, which causes you to go back' to the drug .... This mechanism may explain the seemingly involuntary nature of addiction." (Cotton P: supra note 8, at p 1642).
313. Rosenthal E, Rubenstein LS: International human rights advocacy under the "Principles for the Protection of Persons with Mental Illness." Int J Law Psychiatry 1993; 16: 257-300; Gostin L: Human rights in mental health: a proposal for five international standards based upon the Japanese experience. Int J Law Psychiatry 1987; 10: 353-68.
314. For example, methadone maintenance has been likened to insulin treatment of diabetes: There is no inherent reason why pharmacologic therapy cannot play as important a role in the treatment of drug addiction as other medicinal agents do in the treatment of heart disease, diabetes, and a host of other illnesses .... Some patients will benefit from ongoing therapy, perhaps for the rest of their lives, as is the case with insulin .... Nowhere else do we say to patients using medication that they need to curtail it at some particular point even though the patient continues to benefit from its use. (Cotton P: supra note 8, at p 1642).
315. HIV infection represents an interesting analogy to drug use with regard to disability.- Both disorders can result from voluntary behavior; each can be an asymptomatic, nonimpairing disorder; and illness can be a result of the underlying disorder. For example, injection drug use has been associated with cardiovascular disease such as strokes, neurological dysfunction such as impaired memory or seizures, and infections such as hepatitis or HIV infection resulting from drug injecting. Similarly, HIV infection can lead to neurologic disease, immunodeficiency, and a variety of secondary disorders including an array of infections such as Pneumocystis carinii pneumonia, Toxoplasma gondii meningoencephalitis, blindness due to cytomegalovirus infection, and tumors.
316. See supra note 304.
317. Transient disability is recognized, for example, in the Americans with Disabilities Act of 1990. See Tichy GJ: The Americans with Disabilities Act of 1990. Catholic Lawyer 1991; 34: 343-361, at 349.
318. Bureau of National Affairs, Inc: Text of Department of Justice guidelines for implementing section 504. In (Bureau of National Affairs, Inc, ed) The Americans with Disa bilities Act: A Practical and Legal Guide to Impact, Enforcement, and Compliance. Washington DC, Bureau of National Affairs, Inc, 1990, pp D-19-D-26.
319. Burgdorf Jr RL: IV. Legal Analysis. In Bureau of National Affairs, Inc (ed) ibid, pp 77-139, at p 86.
320. See Parmet WE: supra note 187, at 332 and infra note 346; Gostin L: supra note 7, at 386; and Burgdorf Jr RL supra note 319, at 86-87.
321. Sec. 512(a), The Americans with Disabilities Act of 1990.
322. A Bill to Amend Title XVI of the Social Security Act to Deny SSI [Social Security Insurance] Benefits for Individuals Whose Disability Is Based on Alcoholism or Drug Ad diction, and for Other Purposes. S 498 IS 104th Congress, 1st Session (6 March 1995).
323. Gilmore N, Somerville MA: supra note 10.
324. Somerville MA, Orkin AJ: Human rights, discrimination and AIDS: concepts and issues. AIDS 1989; 3 (suppl 1): S283-S287.
325. Justification of any restriction of a human right requires that the restriction be prescribed by law, have a legitimate aim, and be proportional to the attainment of that aim. Seighart P: AIDS & Human Rights-A UK Perspective. British Medical Association Foundation for AIDS, London UK, 1989, p 11-15.
326. Prohibition approaches to control drug use have been rejected on the basis that they fail the test for proportionality. (Mitchell CN: supra note 63, at pp 237-240). Jos Silvis notes that: The repressive approach, if successful in reducing the problems individuals and society have with the use of drugs, would be legitimate even if it would imply restrictions of freedoms, and interventions from authorities in private situations. The value of health protection would then compete with other values that are recognized in Human Rights. But if repressive politics in the field of drugs has no perspective of reducing or limiting the problems surrounding the use of drugs, and if it doesn't prevent its use, then the infringements from the State in private affairs is more problematic, because there is no competing value being served. (Silvis J: The history of drug control with regard to human rights. In Silvis J, Hendriks A, Gilmore N (eds) supra note 4, pp 33-52, at p 49).
327. See supra note 13.
328. Fox R, Mathews I: supra note 87; Rexed B, Edmondson K, Khan I, Samsom RJ supra note 109.
329. Cartwright WS, Kaple JM (eds) supra note 67.
330. As former U.S. President Ford stated: "All nations of the world-friend and adversary alike-must understand that America considers the illegal export of opium to the country a threat to our national security." (Marshall J: Drugs and United States foreign policy. In Hamowy R (ed) supra note 3, pp 136-176, at p 159). Marshall points out the extent to which this fear changed recent U.S. foreign policy, involved the U.S. Central Intelligence Agency in drug control, and led to U.S. troops entering foreign countries to eradicate coca and opium crops. In addition, the United Nations has stated that "[t]he illicit production, distribution and consumption of drugs have intimidated and corrupted public servants, and have even destabilized Governments. The erratic ebb and flow and sheer volume of `drug money' have affected the money supply and exchange markets." (United Nations supra note 106, at p 3).
331. See quote by Gostin L supra note 11.
332. Arif A, Westermeyer J: Manual of Drug and Alcohol Abuse. Guidelines for Teach ing in Medical and Health Institutions. Plenum Medical Book Company, New York NY, 1988, pp 287-305; Walsh B, Grant M supra note 47, at p 9; Bakalar JB, Grinspoon L supra note 235, at pp 25-31.
333. Leary VA supra note 2, at pp 39-40; Sieghart P supra note 325, at pp 25-28; and, Last JM supra note 162, at p 1188.
334. Jonas S: Solving the drug problem. A public health approach to the reduction of the use and abuse of both legal and illegal recreational drugs. Hofstra L Rev 1990; 18: 751793. An informal and cursory review of Canadian public health legislation failed to show express reference to drug or substance use or abuse in these statutes. Also, there is no mention of drug use, or other allied terms, in the index of texts by Grad FP: The Public Health Manual. Second Edition. American Public Health Association, Washington DC, 1990 and by Wing KR: The Law and the Public's Health. Third Edition. Health Administration Press, Ann Arbor MI, 1990. Only three references are made to substance abuse in the report of the Institute of Medicine, including two in the context of AIDS (Committee for the Study of the Future of Public Health, Division of Health Care Services, Institute of Medicine supra note 162, pp 28, 92, 95). In contrast, drug use is frequently referred to as a serious public health threat, as in the first sentence of the strategy document of the Programme on Substance Abuse of the World Health Organization: "Substance abuse has become one of the most widespread and serious public health problems this century." (Program on Substance Abuse supra note 169, at p 1). This discrepancy between drug use being perceived to be a serious public health problem and responses to it by public health structures is highlighted by Gostin: "A public health strategy for confronting the drug epidemic must first seek a definition of 'public health."' (Gostin L: supra note 7, at p 388).
335. Erickson PG: A public health approach to harm reduction. J Drug Issues 1990; 20: 563-575, at pp 563, 567, 569.
336. Hendriks A, Toma6vski K: supra note 24, at p 59.
337. Fluss SS supra note 180.
338. Silvis J: Human rights and drug policy in Europe. In Silvis J, Hendriks A, Gilmore N (eds) supra note 4, at pp 83-94.
340. Nadelmann E supra note 42; Goldstein A, Kalant H supra note 34; WHO Expert Committee on Drug Dependence supra note 6.
341. With regard to the legal response to drug use, Aart Hendriks and Katarina Toma6vski state: It is widely accepted that medical problems caused by drug abuse cannot be isolated from the environment. This both holds true for the physical, social and legal environment. Intervention policies, aimed at minimizing harmful effects of drugs on individuals and communities, are effective in a supportive environment. This has prompted increased attention to public health and international (human rights) law, as sources of guidance towards the creation of such a supportive environment. Human rights law should apply to drug policies as to all other public policies. Drug legislation can be made compatible with human rights objectives if it follows the same objectives, namely: - the achievement of the highest standard of health, defined as the complete physical, mental and social well-being; - the prevention of the spread of diseases related with or as a result of drug abuse and dependence, and - the protection of public safety, notably prevention of drug-caused accidents. [footnotes omitted] (Hendriks A, Toma6vski K: supra note 24, at pp 58-59).
342. There is no established framework to organize these situations of possible human rights infringements. The listing in this text was derived from sources listed in supra note 21. Additionally, the Introduction to Drug Use and Human Rights in Europe calls attention to the following human rights, infringements in the context of drug use, stating that: [T]he results [of this study of drug use and human rights in Europe] indicate that drug users are vulnerable to violations of their human rights, specifically concerning: the right to privacy, the right to integrity of the body, the freedom of cultural expression, the freedom of movement, the presumption of innocence, [and] equal access to "state of the art" health-care. (Silvis J, Hendriks A, Gilmore N (eds) supra note 4, at p 3).
343. For a discussion of this issue in the context of HIV infection and AIDS, see Hendriks A, Leckie S: Housing rights and housing needs in the context of AIDS. AIDS 1993; 7 (suppl 2): S271-S280.
344. McCarthy G: Drug use and discrimination. National AIDS Bull (Australia) 1994; 8: 32-33.
345. Gilmore N, Somerville MA: supra note 10.
346. Americans with Disabilities Act of 1990, Sec. 510(a). In contrast, Sec. 25 of the Canadian Human Rights Act recognizes previous or existing dependence on a drug or alcohol to be a disability. Drug users were not the only groups expressly excluded from the protection of the Americans with Disabilities Act. As Wendy Parmet comments: Recognizing the breadth of the definition [of disability in the Act], and bowing to the political fears that it might include "politically undesirables," Congress explicitly excluded homosexuality and a whole array of specific sexual and behavioral traits which offend traditional morality. The Act also excludes current users of illegal drugs. Those who have stopped using illegal drugs and have either been successfully rehabilitated, or are currently in a rehabilitation program, are covered, as are those erroneously thought to use illegal drugs. [footnotes omitted] (Parmet WE supra note 187, at p 332). In an endnote, Parmet goes on to state that "ADA, Sec.511(b) excludes `transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders; (2) compulsive gambling, kleptomania, or pyromania; or (3) psychoactive substance use disorders from current illegal use of drugs."' (Ibid., endnote 18, at p 341). See, also, Gostin L supra note 7.
347. Gehr R, Marks C: Drug culture. Spin 1994; 10(5): 55-59, at p 58 [emphasis in original].
348. Blackwell JC, Erickson PG (eds) supra note 1, at p 131.