“A prohibition law strikes a blow at the very principles upon which our government was founded.” – Abraham Lincoln
The concept of prohibition, while historically was associated with alcohol, is a main talking point in today’s culture when it comes to the topic of marijuana. In recent years, the global community has grabbled with prohibition of marijuana. While many countries have allowed for the legal use of medical marijuana and of possession of small quantities for personal use, and one country has gone so far to legalize the drug outright, no country has considered whether the use of marijuana is a human right; until now.
On November 4, 2015, Mexico’s Supreme Court made a historical ruling that personal use of marijuana is a “fundamental human right.” The eighty-eight-page opinion based its opinion on the concept that people have the right to engage in “recreation activities that do not harm others.” While Mexico’s ruling does not legalize the sale of the drug, the ruling has caused a ripple effect across Mexico as well as the global community. The global community now has to determine whether the drug treaties from the 1960s and 1970s hold weight in today’s changing view on marijuana. Specifically, the global community will need to address marijuana at the Special Session of the United Nations General Assembly on the World Drug Problem, as the current treaties call “for international co-operation” in the prohibiting and criminalizing the use, sale, distribution, and production of marijuana. With more countries leaning towards the legalization of marijuana, the treaties and their purposes may become obsolete.
Although Mexico’s ruling has a global impact on the debate prohibition of marijuana, Mexico’s ruling has two other global impacts. The first is how human rights are viewed. Mexico’s ruling was grounded in the “right to the free development of one’s personality.” The “right to the free development of one’s personality” arises from Article 22 of the United Nations Universal Declaration of Human Rights, which states:
“Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.”
Mexico’s interpretation of the right to development of one’s personality is the right to dignity, which should allow a person to make decisions about one’s life. Mexico equated the choice to consume marijuana to the choice of obtaining a divorce arguing that these choices are in the “sphere of personal autonomy” that should not be interfered with, especially by a government. Mexico went further and explained that “mental experiences” that one has while under the influence of marijuana is “among the most personal and intimate that anyone can experience,” which bolsters the argument using marijuana is within sphere of personal autonomy.
One could use Mexico’s interpretation of the right to development of one’s personality to look at the United States’ right to privacy, which is embedded through out the United States’ Constitution, to make the argument that United States’ federal government should not have the ability to prohibit the personal use of a substance. The United States at the moment does not control what a person chooses to ingest for meals, pain medicine, alcohol, etc. So why should the United States prohibit the personal ingestion of marijuana, which as Mexico points out causes a “personal and intimate” experience?
The counter-argument is that it is the right to development of one’s personality is too broad and includes “anything the individual might wish to do” that causes a “personal and intimate” experience. By allowing a person to do what they want to develop their personality the door to what people can do will open wide open. Granted this is a slippery slope argument, but the argument may find traction in governments that want to keep drugs and other questionable activities to a minimum.
The second impact is on how the global community views international treaties. By legalizing the personal use of marijuana, Mexico goes against United Nations treaties on drugs. While each country has the right to determine what happens within the country and the right to not have the international community interfere with internal policies, countries must adhere to treaties that the country signs. If a country does not adhere to the treaties it signs, why even have international treaties that cannot be enforced? Mexico’s ruling shows the weakness in international law because there is no real mechanism to enforce the drug treaties. Even if the International Court of Justice wanted to bring suit against Mexico or any other country currently violating the treaties on drugs, those countries would have to consent, which is very unlikely.
Regardless of how one feels about the effects of Mexico’s ruling and the ever changing debate on marijuana, the global community will soon have to determine whether or not to continue the prohibition of marijuana.
Teresa Milligan is a 3L law student at the University of Denver – Sturm College of Law and the Editor-in-Chief for the Denver Journal of International Law and Policy.