DRUG PROHIBITION FROM A HUMAN RIGHTS PERSPECTIVE
by Mario Lap
In 1924 the German pharmacologist Louis Lewin wrote: "Except for food there are no substances that are as closely connected to the life of people of all times (from ancient civilisations to our days) and places (from the Amazon jungle to our concrete jungle) as the ones we will deal with in the following pages." (1)
Today in Western society, some of these "modificators and moderators of conscience", as they were called by Louis Lewin, are accepted, regulated and taxed such as alcohol, cacao, coffee, tea and tobacco where others are commonly described as drugs and were made totally illegal or restricted to the use for medical purposes.
In considering how the illicit drugs have become so problematic an issue in present society we need to examine the legal basis, philosophy and rationale of drug prohibition as a system of dealing with narcotic substances. Prohibition of specific substances today is often considered to be a totally natural and self-evident solution, where in reality it is hard to distinguish between the solution and the problem itself. Perhaps a little more insight into the roots and history of the drug laws and therefore the basis of present policy may cast this view in a different light.
Individual liberty and general prevention
Drug prohibition is obviously a restriction of individual liberty justified by a desire to protect public health through general prevention. Prohibition’s main weapon is the criminal law. Before we can produce any rational judgement over the justification of this approach to a social/medical phenomenon and its effectiveness, we should first take a closer look at the fundamental legal principles at stake and then observe both the possible and actual consequences.
"Man’s freedom as a human being, as a principle for the constitution of a commonwealth, can be expressed in the following formula: No one can compel me to be happy in accordance with his conception of the welfare of others, for each may seek his happiness in whatever way he sees fit, so long as he does not infringe upon the freedom of others to pursue a similar end which can be reconciled with the freedom of everyone else within a workable general law." (On the Relationship of Theory to Practice in Political Right, Immanuel Kant).
Such Enlightenment philosophy is reflected in the founding documents of modern western society such as the American’s Declaration of Independence which states that all men are created equal; are all endowed by their Creator with certain inalienable rights; and that among these are life, liberty and the pursuit of happiness. Similarly the French Civil Rights Declaration said liberty consisted of the power to do whatever is not injurious to others; thus the enjoyment of the natural rights of everyone has for its limits only those that assure other members of society the enjoyment of the same rights; and that such limits may only be determined by law.(2)
After liberation from the tyranny of absolute monarchs and foreign occupants it was soon discovered that the people’s sovereignty could involve a tyranny by the people’s so-called majority that eventually might pale the tyranny of an absolute monarch. It was with this knowledge in mind that John Stuart Mill in 1859 concluded that society does not need to morally justify all individual behaviour of its members but also does not have the right to prohibit such behaviour unless they directly harm other citizens.(3) The acts of an individual may be hurtful to others or wanting in due consideration for their welfare, without going to the length of violating any of their rights. The offender may then be justly punished by opinion, though not by law. All of these principles are found in the 1948 Universal Declaration of Human Rights: "Everyone has the right to life, liberty and the security of person",(4) and "in the exercise of its rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society" (5)
Having found very little basis for drug prohibition in these principles it is clear we have to refer to slightly more utilitarian or "modern" principles to understand prohibition. For instance does the possible health danger of certain substances for certain individuals validate a total ban of all these substances for all individuals? (6) In fact when looking for similar protective government legislature except for the US alcohol prohibition the only examples which spring to mind are traffic regulations such as the ones concerning helmets and safety belts. Although I don’t know of anyone being sent to jail for violations of these kind of regulations these examples help to explain the nature of the problem we have created for ourselves. While these regulations were designed to make existing dangerous human behaviour (car driving) safer, drug prohibition purports to make dangerous behaviour impossible but ends up simply making it more dangerous.
There is much reason to believe that administrative law and prevention policies would have provided for more effective regulations and conditions regarding drug use patterns and public health policy (7). Scientific evidence that drug prohibition produces lower number of users than any possible administrative solution was not produced in any study known to the author.
History of Treaties on Narcotics
The US has played a dominant role throughout the history of the treaties on narcotic drugs (8). Based on reasons of economics and power and because of strong abolitionist tendencies the US attempted to control the opium trade at the end of the nineteenth century. The international treaties that resulted from this policy did not initially interfere with the rights of individuals to use drugs as they were basically still legally available. The treaties had the purpose of limiting illicit traffic and not the availability to users as various governments such as the British and Dutch operated state-run monopolies. These regulations had nothing to do with the general public in the Netherlands or Britain as they were policies just applied in the colonies. (9) Drug use in Europe and the US was not a public but a medical affair and drugs were regulated in the medical sphere. In compliance with the 1911 International Opium Treaty national laws were enacted that prohibited the production and trade of raw and processed opium without government approval Although these regulations restricted use to medical reasons, and left the distribution to pharmacists and physicians, they did not prohibit possession for personal use. Throughout the last century many American and European patent medicines contained substances nowadays deemed as dangerous drugs: potions containing opium such as laudanum or with cocaine such as Coca Cola. Although their use was labelled as medical there were no legal restrictions or controls on their supply and they were freely available. But the use of these sort of potions diminished as stricter controls were imposed on medicine-not primarily to reduce their use but as protection for the medical and pharmaceutical professions. This brought the use of these types of drugs increasingly under medical control without becoming a manner of public concern.
In the aftermath of World War I European governments had more important problems than objecting to US pressure for extension of the prohibition to the use of opium, coca and cannabis. Therefore no objections were made against a special paragraph on drugs included in the Versailles Peace Treaty ending World War I. By signing all countries were obliged to comply with the 1911 Hague Narcotic Treaty between China, the Netherlands and the US but again this did not mean a criminalisation of drugs. The fact is that the prohibitive narcotic laws, as they were introduced in Europe, were not the product of a European domestic problem and method of regulating affairs but the result of clear cut pressure from the US. In the 1920s this pressure resulted in the extension of existing international treaties, which until then had only been concerned with the chemical derivatives of drug crops and not the crops themselves. Although both the Germans and the Dutch objected, as refined opiates and pure cocaine were important income-generating drugs for their respective pharmaceutical industries, they were forced to sign the resultant 1925 Geneva Treaty. This treaty began the criminalisation of drug use, bringing all the then known drugs and their derivatives under the penal code, except when used in the realm of the medical/ scientific profession and disregarded what decades later became known as recreational drug use.
Rights and Real Politik
After nearly 80 years of prohibition and 30 years of a mass drug use culture in western society, accompanied by an ever intensifying battle against these substances, it is clear that society cannot prevent the availability of drugs. Even with increased assets and resources allocated to these efforts no significant results have been achieved in relation to price, availability or number of users - even in countries where repression is fiercest such as the US.
So why not conclude that the state has no grounds to deny me (an adult tax paying citizen) the right to amuse, intoxicate or destroy myself the way I prefer to do so as long as I don’t hurt others? The current policy of denying me that right is not only unsuccessful in that drugs are available, but ensures unhealthy and criminal conditions.
In 1997 it seems wise to conclude that a blunt undifferentiated prohibition of such a wide variety of drugs produces a ‘remedy’ far worse than the disease. Drugs are as available as ever in all western cities - together with the health damage and dangers to users due to illegal circumstances and marginalised situations they are forced into due to prohibition. As a by-product of prohibition we are confronted with organised crime controlling drug trade and generating enormous amounts of money which is a growing concern to governments. In addition basic human rights and the integrity of the criminal justice system are being undermined in many countries of which not the least the US. (8) And because of the victimless nature of drug crime, making prosecution very difficult, the police resort to increasingly unorthodox methods of enforcement in conflict with natural justice.
As I stated in the introduction to this article drug use has occurred throughout history and across cultures and therefore people’s use of them is an integral part of life. By prohibiting cannabis and allowing a substance like alcohol that is equally or more dangerous, governments are using the law to force its citizens toward a possibly less healthy option. This conflicts with what is called the proportionality principle. This principle lay at the heart of the recent German constitutional court decision regarding cannabis offences. Simply put the ruling stipulated that any penalty should be in proportion to the crime. But when we observe a cannabis policy like the American in the context of proportionality we are presented with a revealing picture of prohibition at work. The penalty for importing a relatively harmless substance like cannabis into the US includes capital punishment for instance. Similarly the rights of many Americans have been violated and their lives destroyed over the harsh prohibition of cannabis with ever increasing mandatory sentences. In addition for many offenders a proper defence is made impossible as everything they possess is routinely seized by government agencies under forfeiture legislation, before any criminal procedures are started. It almost seems like the magic word drugs seems to fill the gap left by the end of the Cold War making every user or victim of a drug test a potential pariah in an alien society.
Back in Europe countries like the Netherlands are facing up to the reality of regulating cannabis, including the supply of cannabis to ‘coffee shops’, both from a public health and social/economic point of view. Therefore I will finish by dealing with the possibilities of such regulation in the context of the 1961 UN Single Convention and also in relation to the annual reports by the body responsible for its enforcement - the International Narcotics Control Board (INCB). The INCB’s 1993 report stated that it was confident the Dutch would take the necessary measures to limit the cultivation of cannabis and the expansion of so-called coffee shops (where there is a long-established policy to allow a person to buy up to 30 grams of cannabis without fear of prosecution). Foreign government and international organisations should be aware of the current Dutch policy with respect to cannabis by now and the negative effects of criminalisation of cannabis on public health and the social position of users. This justifies the regulation of the current practice in The Netherlands.
The Dutch cannabis policy is the cornerstone of overall Dutch drug policy aimed at decreasing the number of new hard drug users by separating the markets. The sort of regulation proposed should be acceptable by the international narcotic authorities as long as the Dutch government combats and punishes illicit exportation. In the context of the main narcotic treaty (the 1961 Single Convention) I believe the INCB expects the Dutch government to regulate but not ban the production and sale of cannabis in the Netherlands. In addition it is clear the board expects the Dutch government to do so in compliance with the Single Convention which stipulates such regulation should be undertaken by a government agency or bureau. This is exactly what is being proposed in the Netherlands. As the main objectives of the 1961 convention are the fight of addiction and illegal trade and allowing medical and scientific use of drugs, there is clearly room for a policy emphasising what is best for public health in The Netherlands.
Let me finish with the words of Jeremy Bentham on the principles of legislation: "Morality in general is the act of directing the actions of men, so as to produce the greatest possible amount of happiness." Legislation ought to have precisely the same object in view. But although these two spheres have the same end in view, they differ much in their extent. All actions, whether public or private, derive from morals. Morality guides individuals through life and through all the relationships of society. Legislation cannot do this, but even if it could, it ought not to try and interfere with individual conduct. Morality prescribes to each individual to do whatever is both personally advantageous and of benefit to the community. But as there are many acts useful to the community which the legislator ought never to command, so are there many hurtful acts, which ought not to be forbidden, although morality may. Legislation has much the same centre as morality, though not the same circumference.
Mario Lap is director of the Foundation on Drug Policy and Human Rights.
(1) Phantastica, Louis Lewin, 1924 Georg Stilke
(2) In 1762 Jean Jeaques Rousseau confronted his contemporaries with the question. To find a form of association that defends and protects with all its might the person and the possessions of all its members, and by which anybody who associates himself and remains free as before His answer was his work The Social Contract reading in book 1" Chapter IV. Nobody has a natural authority over his equals.
(3) On Liberty, John Stuart Mill. Chapter IV. (3) Art 3.
(4) Art 29.2.
(5) Faktizität und Geltung, (Facts and Norms) Beitrage zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats, Jürgen Habermass, Suhrkamp 1992.
(6) A view on the board, Freek Polak & Mario Lap, International Journal on Drug Policy, vol 5 no 3 1994
(7) American Diplomacy and the Narcotics Traffic, 1900-1939, Arnol HJ Taylor Duke University Press, Durham, NC 1969.
(8) Wettig Opium (Legal Opium) 350 years of Dutch Opium Trade in the Indonesian Archipelago, Ewald VanVugt 1985. In de Knipscheer.
(9) Drug Use and Human Rights In Europe, report for the European Commission 1992,
(10) Drug use and human rights, Norbert Gilmore, 1996 Journal of Contemporary Health Law and Policy
(11) Race and drug law enforcement in the state of Georgia, Human Rights Watch 1996 Disproportionate sentences for New York drug offenders, Human Rights Watch 1997
The Politics of Heroin in Southeast Asia, Alfred W McCoy, 1972 Harper & Row
Droit de la Drogue, Francis Cabalerro, Precis Dalloz, 1989
Drugs and Rights, Douglas N. Husak, 1992, Cambridge University Press.
Drogen und Drogenpolitik, Sebastian Scheerer, Campus 1989
La Drogue, une Economie Dynamisee par la Repression, Charles-Henri de
Choiseul Praslin, 1991 Pressese du CNRS
De-Americanizing Drug Policy, Lorenz Boellinger (ed.) 1994 Peter Lang
Wider Besseres Wissen, Stephan Quensel (ed.) 1996, Edition Themen
Concept Cannabis Wet, (draft cannabis act + explanatory memorandum) 1992 Mario Lap, Netherlands Institute for Alcohol and Drugs, (submitted to Parliament by both Dutch and Belgian Green Parties)
Response To The Report on 1992 By The INCB, Mario Lap/Freek Polak 1994 International Journal on Drug Policy
About Nederweed And Coffeeshops, Mario Lap 1995 International Harm Reduction Conference
Recent Changes in the Dutch Cannabis Trade, Mario Lap/Ernest Drucker 1994 IJDP
Dealers, Dice and Dope, Mario Lap1995 IJDP
UN Single Convention on Narcotic Drugs, New York 1961
UN Treaty of Treaties, Vienna 1969
UN Treaty on Psychotropic Substances, Vienna 1971
UN Commentary on the Single Convention 1961, New York 1973
UN Treaty on Psychotropic Substances, Vienna 1988