Jun 16, 2016 9:05 AM

Is Marijuana Use a Human Right?

In 2015, Mexico's Supreme Court has ruled that producing, possessing, and consuming marijuana were human rights. The Mexican Society for Responsible and Tolerant Consumption, or SMART—the organization that brought the case—argued that by banning the drug use, the government violated the human right to the “free development of personality”.

It was really a momentous case—it was argued on the human rights grounds in the country that is considered to be the epicenter of some of the worst effects of the global war on drugs.

Since 1965, American law enforcement agencies made more than 22 million arrests for cannabis violations, the National Organization for the Reform of Marijuana Laws reports. According to a report published by the American Civil Liberties Union, there are several hundred thousand arrests for cannabis possession each year across the country. Only in 2014, at least 620,000 people were arrested for marijuana possession that is equal to one case per minute.

One American Per Minute Arrested for Marijuana Possession
One American Per Minute Arrested for Marijuana Possession
Nationwide, one in approximately twenty arrests is for simple marijuana possession. Although the total number of arrests for marijuana possession in the United States decreased in almost a half between 2010 and 2014, marijuana-related arrests remain near record-high levels.

The debate over cannabis legalization has always been tied to criminal justice policies. Numerous cannabis proponents argue that decriminalizing marijuana will disempower drug traffickers and point out that cannabis is a relatively safe drug, compared to heavy drugs, alcohol, and tobacco. SMART has chosen a rather different debate track, rarely previously seen as a part of the legalization discourse. The members of the organization stated that “the government was infringing on the constitutional doctrine of the free development of personality.” They are confident that people are free to use whatever they want as long as it does not infringe on others' rights. For example, the government can impose a high tax on Coca-Cola to achieve a reduction in average sugar consumption, but it cannot fully ban the consumption of the drink.

So, if the state cannot prohibit you from eating tacos or drinking Cola just because it is bad for your health, why can it ban the use of cannabis?

The right to the “free development of personality” is mentioned in the Article 22 of the United Nations Universal Declaration of Human Rights. Among the countries incorporating the declaration into their constitutions, there are Nicaragua, Belize, Bolivia, and Peru, but not the United States. It means that any suggestion to legalize marijuana in Peru would be more likely to come in a legislative or constitutional level than via court: unlike in the U.S., the civil-law codes in the majority of countries of Latin America proceed from abstractions (such as the right to the “free development of personality”) with judges required to act in accordance with general principles derived from the national constitutions.

Protect Human Rights, Disregard UN Drug Convention, Dutch Study Urges
Protect Human Rights, Disregard UN Drug Convention, Dutch Study Urges
Positive human rights obligations are an essential part of the process of cannabis legalization. Usually, the debates over this issue center on a certain set of obligations such as protecting citizens, stopping criminal activity, and keeping the public healthy.

“All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” That is what is said in Article 1 of the Universal Declaration of Human Rights. Advocates for same-sex marriages and LGBT rights actively use this particular article. But in the case of cannabis, as well as other drugs, it is not just about a harm to the person consuming it and its harm to society—it is also about stigma and discrimination; drug trafficking; xenophobia, racism, and gender inequality; child abuse; driving under the influence; decent living and alternative livelihoods. And this list is endless.

Of course, despite the Mexican Supreme Court deciding as it did, the legalization of marijuana in the country is far from being assured. It will also take some time for other countries, particularly for the Unites States, to adopt the human-rights-based approach to the legislation concerning marijuana.

However, the public opinion in American society is unambiguous: an overwhelming majority of Americans supports marijuana legalization.

Although the situation is different in Mexico where the majority of people still opposes legalization, many experts think that as Latin American countries like Chile and Uruguay, Mexico will gradually become more open to the idea of the legalization of marijuana. And they believe that this particular case may be the first step towards a nationwide change of heart.

SMART's argument was not unprecedented. For example, during a 1994 constitutional court case in Colombia, the phrase “free development of personality” has already appeared while arguing against the criminalization of drug use. Although, unlike in this last Mexican case, human rights then formed only a part of the argument, not the basis for the whole argument.

It may seem that, by analogy, that the government should legalize harder drugs too—heroin, methamphetamine, or LSD. According to SMART members, some parts of the argument apply to other drugs as well, but to a limited extent. The logic of the argument goes that is the substance is relatively harmless, it should be mostly legal. It makes no sense to have marijuana illegal while tobacco and alcohol are freely sold in every store. With more dangerous drugs, the might also be some merit in creating smarter enforcement laws and establishing less punitive legal attitudes.

In contrast, the war on drugs has created a black market for illicit drugs that criminal organizations all around the world can rely on for revenue that payroll other, often much more violent, activities.

The drug problem is very complex, and no one can say that some of the approaches will be 100 percent effective. On the other hand, some methods are known to be more beneficial, than others. Certain drug policy experts insist on the following two key policy pillars: smart prohibition and smart legalization. The approach of smart prohibition focuses on penalizing and preventing problematic drug-related behaviors and actions rather than banning the substance and punishing people for consuming it. Smart legalization is based on allowing the use and selling certain drugs (alcohol, tobacco, marijuana) while minimizing their commercialization. This approach is similar to those we are taking with tobacco today.

There is still no evidence that criminalization of a drug significantly reduces its consumption. So, if the existing measures are not working, maybe we should try something else?

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