When I saw the above headline, it struck me immediately as a possible contender for the Most Absurd Claim To A Customary Norm of International Law Yet. (Even one of my long time favorites, the ATS case involving the use of under-aged camel jockeys, had a better basis.) Although there is a very good case to be made that, under international law, states have a duty to avoid causing chronic pain in their citizens, there is hardly one whit of support for the idea that they are obliged to treat it.
It turns out the story is based upon a Human Rights Watch Report [PDF] that presents access to narcotics and relief from chronic pain as a human right enshrined under international law. Somewhat surprisingly, HRW starts not with a CIL argument, but claims that that the right to treatment of chronic pain is a treaty based obligation. For this they cite a single paragraph of the preamble of the Single Convention on Narcotic Drugs of 1961, which provides that the signatory states are
Concerned with the health and welfare of mankind, [and]
Recogniz[e] that the medical use of narcotic drugs continues to be indispensable for the relief of pain and suffering and that adequate provision must be made to ensure the availability of narcotic drugs for such purposes…
Unfortunately for the HRW report, however, the Convention was clearly not intended to address the availability of pain medication, but rather was entered into by states in an effort to curb cross-border drug trafficking. “Pain” or “suffering” is not mentioned again in the treaty’s text. Even giving it the most generous interpretation, all this language signifies is that the object and purpose of the treaty is to reduce world drug trafficking while not also prohibiting the legitimate medical use of narcotics.
The HRW report also undermines any claims that the Single Convention on Narcotic Drugs of 1961 is the basis of a customary norm that has developed since the treaty entered into force. According to the HRW report, “approximately 80 percent of the world population has either no or insufficient access to treatment for moderate to severe pain.” Given the total absence of any opinio juris on the subject, a mere 20% compliance rate does not a norm make.
I will not even address the report’s batpoop crazy claim that the well established and more-or-less globally accepted norm against cruel, inhumane, and degrading treatment applies to chronic pain, because “[a]s part of this positive obligation [against CITD], states have to take steps to protect people from unnecessary pain related to a health condition.” Seriously, HRW?
I suppose I could accept that the right to treatment of chronic pain qualifies as an aspirational norm, albeit a pretty weak one. The World Health Organization does list codeine and morphine on its Model List of Essential Medicines, a list signifying those drugs which states should endeavor to make available to all of their citizens that need them. But that’s about the most I can say for the study’s claims.
Of course, all of this is definitely not to suggest that the report does not in fact identify a genuine problem. As HRW notes, “Burkina Faso estimates that 8 people need morphine per year. Gabon estimates 14. The Gambia, 31.” Hard to argue with a need for education and reform there. But by cloaking every worthy policy suggestion in a nonsensical guise of “international law,” HRW is actually undermining the rule of international law on the global plane.