HOW HUMAN RIGHTS CAN EFFECT CHANGE
As detailed above, for the drug law to comply with human rights law, public officials must show that the drug law is neither a discriminatory practice nor more repressive or severe than absolutely necessary for the general welfare.
As a society we have never scrutinised this. Nonetheless, after more than 50 years of a global war on drugs, we have learned enough about drugs and drug prohibition to make a case that the drug law represents a discriminatory, disproportional, and arbitrary practice—and that we are dealing with a violation of human rights.
This being so, the human rights conventions affirm that we shall have an effective remedy. What this means is that the State is under a contractual obligation not only to respect our rights but also to help vindicate them.
All branches of government have a responsibility to assist in having the problematic relationship between drug law and human rights law reviewed. Provided therefore that public officials are presented with evidence of a human rights violation, they must ensure that the issue is brought to light under the auspices of an independent, impartial, and competent commission. Cessation of an ongoing violation is an essential element of the right to an effective remedy, and if our officials fail to investigate these allegations, they commit a punishable offense.
We mention this because, historically, a culture of impunity is the greatest threat to the advancement of human rights. Strengthening accountability of public officials, therefore, is important to human rights protection, and under no circumstances may a state party relieve perpetrators from personal responsibility.
Knowing this, politicians should be eager to assist in having the issue properly reviewed. Even so, over the past 50 years, prohibition has become a deeply rooted social practice. To most civil servants, it is still synonymous with all things good and decent, and, as it takes a certain modicum of integrity to provide an effective remedy, we should not be surprised if some fail to abide by their duties to human rights law.
Politicians, however, are not the only civil servants under a responsibility to have this issue reviewed. If the political process fails, the judiciary is obligated to provide an effective remedy, and people on trial for violating the drug law can employ their rights as a defendant to have the legality of the law examined.
In any case, therefore, whether we go to the judiciary, the executive or the legislative branch of government, the obligations are the same; civil servants and magistrates are all duty-bound to let the issue be determined by an independent, impartial and competent tribunal, and a failure to do so will result in legal responsibility. The law is clear, and so we can use our rights as defendants/citizens to review the relationship between prohibition and the human rights conventions.
That being said, many prohibitionists harbour irrational fear-based reactions to this topic and are not that enthusiastic about the notion of rights-oriented drug policies. Nevertheless, it should not matter whether we are prohibitionists or abolitionists: if drug prohibition really is a discriminatory, disproportional and arbitrary practice, the rule of law decrees that we end it, and getting to the bottom of this should be our priority number one.
When it comes to this, there are several ways forward: Civil servants should immediately look into this issue and use their position to ensure its resolution. Concerned citizens should read up on human rights and drug policy and demand action from their representatives. For activists, writing to politicians or the media, or demonstrating is a remarkable way of expressing your concern; and for those who are on trial, accused of violating the drug law, using your right to review the legality of the law is an excellent way of promoting human rights.
When dealing with such gross human rights violations, all non-violent options are on the table, and for those who want to know more about obligations to the human rights conventions, we advise a read of chapter 5 of “To End a War”, which also elaborates on the implications of our right to an effective remedy, as well as the performance standards against which public officials can be held accountable (chapter 4 might also be helpful). To fully overview how drug prohibition violates the Bill of Rights, see our 2018 report “Human Rising“. For Americans, we recommend our case study, which details how the US Justice system has mistreated constitutional challenges to the drug law.