HOW DRUG PROHIBITION VIOLATES RIGHTS
History is proof that public officials are not always content with being mere civil servants. One reason is that special interests with an agenda of their own may disproportionately influence them. Indeed, this is more often than not the case, and as bureaucracies tend to justify their existence no matter how detrimental to the greater organism of humanity, the machinery of State is inclined to expand its sphere of influence on our account.
Human rights law recognises this. Its objective, therefore, is to promote a set of principles and norms to protect us against unlawful (meaning unnecessary, discriminatory, dysfunctional and overbearing) governmental intervention. These principles are autonomy, proportionality, equality, non-arbitrariness and a liberty presumption, and they lay out the standard that all laws must comply with.
To understand how this standard invalidates the drug law, remember that the fundamental premise is that the individual is to have as much freedom, self-determination and responsibility as possible. To justify any limitation on our freedoms, therefore, the State must prove that “just requirements of morality, public order and the general welfare” necessitate such action.
This means that public officials must demonstrate that the law satisfies the test of legality, necessity, reasonableness and legitimate purpose. To succeed in this endeavour, they must show that the separation between licit and illicit drugs makes sense and that they have good reasons for criminalising the illicit drug users. The only way is by first demonstrating in specific fashion the precise nature of the threat (i.e. the illicit drugs). Then they must show that the drug law is necessary to combat this threat, that it is effective in doing so, and that it at the same time preserves the interests of the individual and society. This means that not only must the prohibition be effective in curbing the supply and demand of the illicit drugs but that it must be the least intrusive instrument amongst those which might serve a protective function. All these criteria must be met, for only in doing so can prohibitionists demonstrate that the law fairly balances the rights of the individual with the interests of the community.
This is the essence of the test of reason. However, if the State fails to demonstrate that the drug law meets these criteria, we are dealing with an arbitrary, disproportionate and discriminatory practice—and we have a clear violation of our catalogue of rights.
As previously mentioned, our drug policies’ relationship to human rights law has never been considered. One reason is that when these policies were formulated, the situation pertaining to the illicit drugs was different, and we did not know enough about drugs or the consequences of prohibition to put two and two together and challenge the law from this perspective.
Half a century later, however, we know better. We have learned that whether we are talking about licit or illicit drugs, the same supply and demand mechanisms are in effect and the same varying patterns of use, and we have learned that alcohol and tobacco, each in their own way, are the worst of all drugs for society and users alike. Not only that, we have also discovered that the degree of criminalisation has little to no influence on the user population, that the problems generated by prohibition (organised crime, corruption, violence, disease, deaths by overdose, etc.) are worse than the problems caused by the drugs themselves, and that a health-oriented approach, like the one we have for alcohol, is a more sensible solution to the drug problem.
In other words, as we have wised up, we have discovered that the idea of prohibition is built on a series of faulty premises, prejudices that can be traced back to a massively overblown enemy image and the moral panic that is triggered. However, when we take into account (1) that the separation between licit and illicit drugs is nonsensical and (2) that less invasive and more prudent means than the law-and-order approach is available, we also have a sound basis for arguing that today’s policies are incompatible with key human rights standards and principles.
After all, we have just observed that the equality principle protects against discriminatory practices, while the proportionality principle defines certain criteria that all laws must comply with for compatibility with our catalogue of rights. And since most experts on drug policy agree that the separation between licit and illicit drugs makes no sense and that a health-oriented approach, like the one we grant the users of alcohol and tobacco, is a much more sensible attitude to the drug problem, it seems clear that we are dealing with a violation of the equality principle. Furthermore, because these policy analysts also agree that drug prohibition can never achieve its goal of a drug free world, that less invasive means are available, more fit to minimise the harms caused by drug use, and that the harms associated with prohibition far outweigh the harms caused by drug use, it seems clear that drug prohibition is incompatible with the principle of proportionality.
This being so, should prohibitionists not prove otherwise, we can conclude that we are dealing with a human rights violation.
Note: If you want to learn more about these principles and their invalidation of our drug laws, please read chapter 3 of “To End a War”. Moreover, if you want to know more about the specific articles of the international human rights conventions and their relevance, chapter 4 of this book will elaborate. For Americans, we recommend our case study, which details how the US Justice system has mistreated constitutional challenges to the drug law.