Debating drugs: Talking about rights and freedoms


The below is an extract from Transform's new publication, 'Ending the war on drugs: How to win the global drug policy debate'.

Human rights and fundamental freedoms have always been a central theme of the drug law reform debate, but arguments in this area are sometimes not well thought through. It is particularly important that human rights arguments are grounded in strong reasoning, and take into account the political and cultural context of the debate, as well as your audience's values and priorities. There is a difference between calling for a specific legal right to use drugs, and highlighting how criminalising or punishing consenting adult drug use impinges on a range of internationally recognised legal rights, including the rights to privacy, health, culture, and freedom of belief and practice (which is most notably impinged on with regard to traditional or religious uses of certain plants).

The arguments for the personal freedom of consenting adults to use nonmedical psychoactive substances are intellectually strong. The principle underpinning most modern law-making is that consenting adults should be free to engage in whatever behaviour they wish, as long as it does not harm others, and that risky personal behaviour or self-harm, while a legitimate concern of government, should generally not be the concern of criminal law. 

Many human rights and freedoms, however, are not absolute, including the right to privacy and the freedom to manifest one's religion. A state may justifiably violate these rights – for example, if doing so is necessary to protect the rights or health of others. But any such action must serve a legitimate aim, and be no more restrictive than is necessary to achieve that aim. The burden of proof is on the state to show this is the case.

Below are some key points you can make:

  • Drug laws that criminalise or punish personal drug use (or possession for personal use) are at odds with the law for comparable personal choices that involve risk-taking or self-harm by consenting adults, such as dangerous sports, unsafe sex, and the consumption of legal drugs, including alcohol and tobacco, and other legally available substances such as solvents. These activities may not be wise, and they may even be actively discouraged, but they should not be criminal
  • There is an important distinction here between the "consensual crime" of drug use, which involves personal risk-taking, and laws that criminalise actions that directly harm others, such as theft, rape or assault. Do highlight this obvious distinction if you hear the ludicrous prohibitionist argument "Well, why not legalise murder?" There is simply no moral or legal equivalence between consenting adult drug use and murder
  • To avoid confusion, you may need to be clear that no one is suggesting the legal status of criminal acts committed under the influence of drugs would be affected. For example, driving while impaired by drug use would remain a criminal offence
  • Human rights arguments can also apply to drug production and sales, although care is of course needed when deploying them. Such arguments can, for example, focus on the right to an adequate standard of living for low-income coca growers, or on the right to privacy of people who own a smallholding or a few coca plants. Again, you can ask: Are there no other, less punitive means of achieving the policy goal than enforcement? And if the means have demonstrably not achieved the stated aim over a substantial timespan, can the infringement of rights possibly be justified?

There is no specific legal right to use drugs, and in our judgement, arguing that there should be rather confuses the issue. We would suggest it is more useful to reverse this argument and ask "What are the human rights implications of criminalisation?" Debates around the rights and wrongs of individuals' drug use should not obscure the fact that criminalising the consenting activities of hundreds of millions of people impacts on a range of human rights, and involves substantial human costs.

The human rights implications of criminalisation are not just felt by people who use drugs, nor are their rights the only ones infringed. Criminalisation affects entire communities, urban and rural. This is an important point to make when tailoring your arguments and ensuring that the context in which you raise human rights concerns is properly assessed. Ultimately, given the centrality of criminalising and punishing drug users to current policy, the war on drugs is, to a significant degree, a war on people.