Autonomy, private life, and self-creation : are criminal drug laws a violation of the right to personal self-determination?

Abstract

The use, production, and distribution of illicit drugs has persisted and grown over the last several decades, despite international legal efforts to stamp out the non-medical and non-scientific drug trade and “recreational” use of these substances. Broad criminalization of drugs under international and domestic laws have led many UN bodies, human rights experts, and drug policy reformers, among others, to express concern that criminalization of drugs results in human rights violations. Many of these concerns focus on the right to health, but less attention is paid to drug use as an exercise of personal autonomy, personal identity, and self-creation. Autonomy rights are broadly protected under international human rights law (IHRL), especially the International Covenant on Civil and Political Rights (ICCPR), and the European Court of Human Rights (ECtHR) has expanded this protection in its jurisprudence on private life under Article 8 of the European Convention of Human Rights (ECHR). Harm to the individual and society is the essential justification for criminalizing drugs. This thesis investigates the question of whether and to what extent does the criminalization of drugs violate the autonomy rights of people who use drugs under IHRL. To attempt to answer this question, this thesis explores the values protected by autonomy rights, including self-development, as well as the harms and benefits posed by several prohibited substances, and the impact that various types of drug regulation have on these harms. As the international drug treaties find their expression in domestic systems, these values and harms are considered in light of the autonomy rights jurisprudence of the ECtHR, especially the rights to self-development and personal identity. Looking at applications of the proportionality test in ECtHR caselaw, this thesis aims to discover whether the current legal models for recreational drug use violate the autonomy rights of adult illicit drug users. The models considered are: prohibition, personal use decriminalization, and legalization. The thesis concludes by noting that the implications of autonomy rights protection under IHRL, as illuminated by ECtHR jurisprudence on private life, indicates that criminalization does violate the rights to self-development and personal identity and that legalization of recreational drug use for adults, including regulated supply and distribution, combined with adequate treatment for those with substance use disorders will respect the rights at stake and significantly reduce harm.