HOW DRUG PROHIBITION VIOLATES RIGHTS
History is proof that our officials are not always content being mere civil servants. One reason for this is that special interests with an agenda of their own can have a disproportionate influence on the state apparatus. Indeed, this is more often than not the case, and as bureaucracies also have a tendency to seek to justify their existence whether or not they are beneficial for the greater organism of humanity, the machinery of State is inclined to expand its sphere of influence in a manner that is detrimental to the common good.
Human rights law recognizes this. Its objective, therefore, is to protect us from undue interference in our daily lives, and it establishes a set of principles and norms intended to protect us against unlawful (meaning unnecessary, discriminatory, dysfunctional and overbroad) governmental intervention. The most important of these principles are those of autonomy, proportionality, equality, non-arbitrariness, and the liberty presumption, and they provide us with a set of criteria that all laws must comply with.
To understand how these criteria invalidate the drug law, we must remember that the fundamental premise from which all else follows is that the individual is to have as much freedom, self-determination and responsibility as practically possible. In order to justify any limitation on our freedoms, therefore, the State must prove that “just requirements of morality, public order and the general welfare” necessitate it.
This means that our officials must demonstrate that the law satisfies the tests of legality, necessity, reasonableness and legitimate purpose. To succeed in this endeavor, they must show that the separation between licit and illicit drugs makes sense and that they have good reasons for criminalizing the illicit drug users. The only way they can do this 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. Among other things, this means that the prohibition not only must 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 achieve a protective function. All these criteria must be met, for only in doing so can prohibitionists demonstrate that the law strikes a fair balance between the rights of the individual and the interests of the community.
This is the essence of the test of reason. And if the State fails to show that the drug law meets these criteria, then 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 for this is that when these policies came into being the situation pertaining to the illicit drugs was manifestly different and we didn’t 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, there are the same supply and demand mechanisms 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, but we have also discovered that the degree of criminalization has little to no influence on the user population; that the problems generated by prohibition (organized 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 much more sensible solution to the drug problem.
In other words, as we have wised up, we have learned 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 follows. And when we take into account that (1) the separation between licit and illicit drugs is nonsensical and (2) that less invasive—and more prudent—means than the law-and-order approach are 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 seen that the equality principle protects us against discriminatory practices, while the proportionality principle defines certain criteria that all laws must comply with in order to be compatible with our catalogue of rights. And as most experts on drug policy agree that (1) the separation between licit and illicit drugs makes no sense and (2) that a health-oriented approach, like the one we grant the users of alcohol and tobacco, is a much more sensible solution 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 (3) drug prohibition can never achieve its goal of a drug free world; (4) that there are less invasive means available, more fit to minimize the harms caused by drug use; and (5) that the harms associated with prohibition far outweigh the harms caused by drug use, it also seems clear that drug prohibition is incompatible with the principle of proportionality.
This being so, we can—should prohibitionists not prove otherwise—conclude that we are dealing with a human rights violation.
Note: If you want to learn more about these principles and how they make our drug laws incompatible with human rights law, please read chapter 3 of “To End a War”. Also, if you want to know more about the specific articles of the international human rights conventions and how they are relevant, chapter 4 of this book will elaborate. For Americans, we reccommend our case study, which details how the US Justice system has mistreated constitutional challenges to the drug law.