Decriminalization of drug use in the context of HIV: a guidance note
People who use drugs are disproportionately impacted by the HIV epidemic. In 2022, the risk of acquiring HIV for people who inject drugs was 14 times that of the rest of the adult population. Harm reduction services, including needle and syringe programmes and opioid agonist maintenance treatment (OAMT), have been proven time and again to be effective in significantly reducing the risk of acquiring HIV, viral hepatitis, and other blood-borne viruses. Access to HIV testing and treatment can enable people living with HIV to reduce their viral load to undetectable, preventing sexual transmission of HIV, with a life expectancy similar to that of the general population.
However, criminalization of drug use and possession for personal use, as well as related minor offences such as possession of drug-related paraphernalia, have been repeatedly shown to undermine harm reduction efforts, increase stigma and discrimination, and raise the risk of acquiring HIV. Criminalization of drug use and possession for personal use, along with certain law enforcement practices, is associated with higher rates of needle sharing, lower engagement with needle–syringe programmes, and higher HIV incidence and prevalence.
The decriminalization of drug use and possession for personal use, when implemented effectively, is a critical element in a human rights and public health-based HIV response. It can reduce stigma, improve access to harm reduction services, and facilitate engagement with HIV care. A growing number of countries are implementing models of decriminalization, spanning all continents. Some countries have had decriminalization in place since the 1980s. Each approach is slightly different, and the way in which decriminalization can support or undermine the HIV response—in some cases repeating the harms of criminalization—varies. This document brings together different approaches to and experiences of decriminalization of drug use and possession for personal use and provides recommendations for countries to ensure an enabling environment for the HIV response.
International commitments, laws, norms, and standards relating to decriminalization of drug use and possession for personal use
The decriminalization of drug use and possession for personal use has been called for by a wide range of international human rights and public health bodies as a key element in ending AIDS as a public health threat and fulfilling broader health and human rights commitments. The 2021 Political Declaration on HIV/AIDS calls for the removal of harmful restrictive and discriminatory laws that create barriers to HIV services. In line with this, the Global AIDS Strategy 2021–2026 includes a specific target that by 2025 less than 10% of countries will have laws criminalizing the possession of small amounts of drugs.
In terms of drug policy, the three United Nations (UN) drug conventions¹⁴ provide the framework for the international approach, with State parties required to implement the measures contained within them. The overarching concern of the UN drug conventions is the health and welfare of mankind. As noted by UNODC, while the conventions do not mention decriminalization of drug use and possession for personal use, it is not inconsistent with the obligations of the conventions. They state that “recognizing drug use and drug use disorders as a public health concern that require responses that are health-centred and less reliant on punitive sanctions is entirely consistent with what is foreseen in the international drug control framework.”
International human rights bodies and special procedures have likewise recommended the decriminalization of drug use and possession for personal use in order to meet international human rights commitments, including the Committee on Economic, Social and Cultural Rights, the UN Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, and the UN Working Group on Arbitrary Detention. The UN System Common Position on Drug Policy recognizes the importance of developing alternatives to conviction and punishment, including decriminalization of drug possession for personal use.²¹ UNAIDS, UNDP, WHO, and OHCHR have all recommended the decriminalization of drug use and possession for personal use as critical to the HIV response. The International Guidelines on Human Rights and Drug Policy (International Guidelines), published in 2019 by these agencies, along with the International Centre for Human Rights and Drug Policy, make it clear that under international human rights law states may “utilise the available flexibilities in the UN drug control conventions to decriminalise the possession, purchase, or cultivation of controlled substances for personal consumption.”
What is meant by decriminalization?
Decriminalization refers to a process, the end result of which is that a particular act is no longer considered a criminal offence—for example, by removal from the criminal code—and does not attract criminal penalties. Administrative consequences, such as a fine or referral to treatment, may be imposed instead, though they are not present in all decriminalization models. It is distinct from depenalization, wherein the act remains criminalized—meaning no legislative reform is required—but there is a reduction in the use of existing criminal sanctions. It is also distinct from legalization, which explicitly permits non-medical supply and use of drugs and establishes a formal regulatory framework for that purpose.
¹ The Single Convention on Narcotic Drugs of 1961, as amended by the 1972 Protocol; the Convention on Psychotropic Substances of 1971; and the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988.
In relation to drug policy within the scope of this document, decriminalization refers to the removal of criminal penalties for drug use and possession for personal use, as well as other minor drug-related offences. In this Guidance note, “decriminalization of drug use and possession for personal use” is used to refer to the decriminalization of personal drug use, possession of drugs for personal use, as well as other minor offences related to personal drug use such as the provision or possession of drug-related paraphernalia, like needles and syringes.
Purpose, scope, and methodology
This Guidance note pulls together the lessons learned from different models and approaches to the decriminalization of drug use and possession for personal use, analysing their efficacy in relation to HIV outcomes. It is intended to support countries in developing effective, public health and rights-based models of decriminalization in the context of HIV. It provides key principles and good practices from the various models reviewed, as well as the experiences and expertise of people who use drugs, academics, health service providers, and other experts.
To produce the Guidance note, a range of methods were used, including legal and policy reviews, surveys distributed to country and regional offices, and community and expert consultations. These consultations were led by INPUD and provided in-depth insight from the community of people who use drugs, civil society groups, UN country teams, and an international advisory community of drug policy experts. Their expertise, and crucially the expertise of people with lived and living experience, was essential for ensuring an accurate reflection on the lives of people who use drugs and the effects of drug policy.