FIVE QUESTIONS THAT MUST BE ANSWERED
As explained above, five questions must be answered to the satisfaction of an impartial, independent and competent tribunal in order for drug prohibition to be found compatible with human rights law. Provided that our civil servants recognise the rights-oriented debate, these questions are basically the same, and can, using cannabis as an example, be stated like this:
• Whereas all comparisons of the problems associated with cannabis and legal drugs such as alcohol and tobacco demonstrate that the legal ones are more harmful to users’ health and more destructive to us as a society, how will you defend the present policies? How can you, without basing your drug policy on a discriminatory practice—and thus violating the principle of equality—argue in favor of a health-oriented approach toward alcohol users and a continued criminalisation of cannabis users?
• Whereas the same supply and demand factors are involved when it comes to cannabis and other drugs such as alcohol and tobacco, and whereas the different groups of drugs also have the same varying patterns of use associated with them, how will you justify the persecution and the demonisation of the drug law violators? What sort of crimes against his fellowmen has a cannabis producer, transporter or seller committed that an alcohol producer, transporter or seller has not?
• Whereas virtually all of the world’s leading drug policy scholars agree that the drug laws have had worse consequences for society in general and users in particular than the drug use itself would have had, and whereas more and more organisations and commissions publish reports that confirm the same, how will you, from the growing evidence base that suggests that the cure (cannabis prohibition) is worse than the disease (cannabis use) defend current policies as measured against the principle of proportionality?
• Whereas a majority of drug policy experts agree that there was a moral panic behind the outlawing of cannabis, whereas these professionals acknowledge that its current classification makes no sense, whereas scholarly works such as James Ostrowski’s Answering the Critics of Drug Legalisation, Douglas Husak’s Drugs and Rights, and David A.J. Richards’ Sex, Drugs, Death, and the Law have thoroughly refuted the traditional arguments in favour of criminalisation, whereas an independent, impartial and competent tribunal (the Cannabis-tribunal in the Hague, 2008) has already qualified the prohibitionist argument as “based on fallacies” and “absolutely worthless”, and whereas the drug laws thus seem to build their credibility on a series of faulty premises; Considering the fact that the enemy image of cannabis has proven to be vastly exaggerated, considering that the separation between the licit and illicit substances has proven an arbitrary divide, considering that the evidence is increasingly clear that the drug laws have failed in reducing their supply and demand, considering that American, as well as European decriminalisation experiments have shown a health-oriented approach to be more successful in dealing with the harms caused by drug use, considering that the cure has proven worse than the disease to the degree that the harms caused by prohibition now have become so enormous that they threaten to undermine the very fabric of our society, considering that paternalistic and moralistic arguments have failed, and considering that you can no longer justify prohibition on the basis that (1) it suppresses different types of crime, (2) that it protects our youth and the well-being of society, (3) that drug abuse has substantial economic and social costs, (4) that cannabis use is intrinsically immoral and degrading in nature, (5) that its use is self-destructive and dangerous and may cause a variety of harms, including physical injury, addiction and death, (6) that it is a gateway drug, (7) that its use is not a victimless crime since it causes harm to others, and (8) that we do not know the consequences of legalisation; all this considered, what compelling reasons can there be for prohibition, and in what way are its means tailored towards its explicitly stated ends?
Source references and documentation for these allegations can be found in To End a War, and as you can see from the endnotes in this book, the evidence speaking in favour of legalisation is most compelling. Provided therefore that the prohibitionists cannot answer these questions—and provided that they recognise that the human rights conventions protect against arbitrary, disproportionate and discriminatory interferences and that the same test of reason that all other laws must conform to also applies to the drug laws—we can safely conclude that current policies gravely violate our catalogue of rights.
A prohibitionist finds no way out of this predicament. To justify the status quo, he/she must succeed in convincing an independent, impartial and competent tribunal of one or the other—and if our most obstinate prohibitionist officials, sensing they cannot successfully refute these questions, should endeavor to deny the merits of the rights-oriented debate all together, then they must invalidate this chain of reasoning and answer the following question:
• Whereas the fundamental principle from which our system of law follows is that the individual is to have as much freedom, responsibility and self-determination as absolutely possible (that is, as compatible with a similar right and freedom of others); whereas to whatever degree our rights and freedoms shall be restricted weighty societal considerations must necessitate such actions (that is, they must be required for the protection of the general welfare and the purpose of securing due recognition and respect for the rights and freedoms of others); whereas the purpose of human rights law is to see to it that this is so and to protect the individual from undue, unjust and arbitrary interferences; whereas at the core of the human rights conventions we therefore find certain legal principles derived from the Wholeness concept, mirrored in all humanitarian values, and bringing together constitutional law, social contractarian thought and moral theory; whereas the articles of the conventions are the result of these principles and established to promote them so that their light can shine forth as we mature as a society towards greater levels of understanding; whereas these conventions thus are established to ensure to all people, without distinction of any kind, protection against discriminatory, unjust, arbitrary and disproportional practices; whereas this obviously includes the world’s 200–300 million drug users, and whereas the objective of human rights law therefore is to secure also to them the rights and protections recognised in the human rights conventions; Considering that you undertake to strive for the advancement and observance of the rights and protections recognised in these conventions; considering that the principles you have a duty to promote and protect establish certain criteria that our system of law must be in accordance with in order to be lawful; considering that the abolitionists have assembled overwhelming evidence that the drug laws, as measured against these criteria, are found wanting; considering that these laws’ societal function and consequence has been so devastating that they fulfil the criteria as gross human rights violations and crimes against humanity; considering that the abolitionists have presented documentation that legal scholars and drug policy experts around the world have concluded the same and that former officials of such stature as UN Secretary General and High Commissioner for Human Rights are among the people who have attested to this factual picture; considering that you have been presented with four questions that must be answered to the satisfaction of an independent, impartial and competent tribunal if these scholars’ and experts’ conclusions are to be refuted; considering that the prohibitionist regime has never been submitted to the test of reason and that our officials hitherto have refused to respond to these questions; considering that the rule of law demands that they be answered, but that every official so far confronted with the matter has flouted his duties and denied us our right to an effective remedy; considering that up to 300 million drug users therefore are without the protection of human rights law and considering that the validity of the social contract and your credibility as civil servants now depends on the degree to which you take the promotion and observance of human rights law seriously; considering that your responsibility not only to the world’s drug users but also to humanity at large, the rule of law and the human rights conventions you have a duty to protect and promote is clear; considering that objectively speaking there is no doubt that the abolitionists’ concerns are valid and that to protect the integrity of the principles at the heart of the conventions you therefore need to see to it that human rights law rules supreme, that the matter is properly reviewed, and that these questions are satisfactorily answered; considering that if you fail to do so without adequately addressing the issues raised herein—that is, explaining wherein this chain of reasoning you disagree and/or what more corroboration we need to substantiate our contentions—it will become evident that your opposition to drug reform is blind, that it is motivated by ignorance and ignoble ambitions and that you are misusing your authority in an attempt to arrest the development of human rights rather than advancing it; considering that in doing so you are, in effect, an enemy of all things good and decent, standing shoulder to shoulder with gangsters and war profiteers against the rule of law and the interests of the human race, and that you rightfully can be persecuted as a wilful participant in crimes against humanity; All this considered, how will you explain your reasons for maintaining that the principles of human rights law do not apply to our drug laws? How will you explain your position and your rationale that the drug users somehow are exempt from a catalogue of rights that is inherent to every human being and that we are all supposed to enjoy?
This is the great challenge facing prohibitionists in every government; only in answering these questions, can they stand their ground; only in doing so, can they show us that current policies are compatible with human rights; only in doing so, can they assure the world’s drug users that their rights are respected; and only in doing so, can the State present itself as an adherent to the rule of law.