The Child’s Right to Protection from Drugs

The UN Convention on the Rights of the Child (CRC) stands alone among the core UN human rights treaties in setting out a human right to protection from drugs. Article 33 provides that “States Parties shall take all appropriate measures, including legislative, administrative, social and educational measures, to protect children from the illicit use of narcotic drugs and psychotropic substances as defined in the relevant international treaties, and to prevent the use of children in the illicit production and trafficking of such substances.”1 There are two points to note here; first, Article 33 contains two clauses: one relating to drug use and one to involvement in the drug trade. And second, the CRC is connected via Article 33 to the three UN drug control conventions: the Single Convention on Narcotic Drugs 1961 (“Single Convention”), the Convention on Psychotropic Substances 1971 (“1971 Convention”), and the Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988 (“Vienna Convention”).2 These are the relevant international treaties to which the provision refers. In turn, the preamble of the Vienna Convention sets out, by way of justification for the provisions that follow, States parties’ deep concern that “children are used in many parts of the world as an illicit drug consumers market and for purposes of illicit production, distribution and trade in narcotic drugs and psychotropic substances, which entails a danger of incalculable gravity.”3 This speaks to the issues of drug use and involvement in the drug trade addressed in Article 33. The CRC and the drug control system appear to hold consistent views: States have an obligation to protect children from drugs and concurrent obligations to control those drugs in certain ways. But are there deeper inconsistencies relating to theories and principles underpinning each regime? The drug supply chain imperils children at each stage, from production to use. Children are harmed through drug use, parental drug dependence, drug-related violence, exploitation in trafficking, and a range of other ways.4 But it is meaningless to simply say that children have the right to protection from drugs. What matters is what states do to implement that right, and unlike many other areas of child rights, implementing Article 33 requires action in a legal and policy area long characterized by considerable human rights risks.5 It is plausible to ask whether the CRC serves to mitigate these risks or if it provides a child rights justification for the actions that generate them. According to Anne Orford, law “is inherently genealogical...The past, far from being gone, is constantly being retrieved as a source or rationalisation of present obligation.”6 This is not in itself a bad thing, but it be-