The human rights implications of drug policy and drug use are many and varied. In the latest instalment of their exclusive series of articles for VolteFace, Kate Thompson and Petr Kudêlka explore the interface between the two, and how drug policy impacts on different human rights.
All drugs are different, as we know: people don’t drink coffee for the same reason others use magic mushrooms. These differences span the origins and history of the use of different drugs, to their physiological or societal harms and potential benefits. This variety must, therefore, be reflected in the drafting of drug policy and, likewise, in drug policy reform. From a human rights perspective, this nuance is equally relevant. Although some human rights considerations are applicable to the discussion of all illicit drugs, some, often powerful, arguments only apply to certain groups of substances. Psychedelics are a good example of this.
Psychedelic drugs have been used by almost all cultures, throughout history and around the world. Even animals have been found to ingest psychedelics in the wild – with elephants getting drunk on fermented fruit, jaguars eating ayahuasca to help with hunting or reindeers getting high on magic mushrooms. These substances are a part of our history, author Terence McKenna having even suggested that they may have played a key role in human evolution. In addition to this, psychedelics have a profound and particularly interesting effect on the mind, as compared to other drugs:
‘LSD experiences might well be experienced as positive, frequently “mystical”, and personally meaningful (and usually draining). However, overwhelming experiences of this nature can be miserable or terrifying too, with horrible effects which may last anywhere from a few moments or several hours.’
Despite their intense effects, the harms related to the use of psychedelics are low, as compared to other psychoactive substances. This combination of lower risk and powerful psychoactive effect also gives rise to considerable therapeutic potential. Combined, the special characteristics and applications of psychedelics result in a very individual interaction with human rights standards and principles. In particular, the rights of indigenous peoples and the rights to self-determination, to privacy, to freedom of conscience and religion and to health are all particularly relevant in efforts to develop a more sensible approach to psychedelic drug policy.
Traditional uses of psychedelic substances represent a major challenge to national and international legal frameworks, and exemplify the tension between a state’s obligations under the international drug conventions and the requirements of the international human rights regime. This impasse between the right to religious freedom, the right to self-determination and global prohibitionist drug policies has not yet been resolved in a satisfactory manner, with approaches differing dependent on country, psychedelic substance, indigenous group in question and ‘religion’ concerned.
As one of the oldest and most fundamental human rights, freedom of religion and conscience entitles individuals to believe what they want, and to conduct their spiritual practices, free from state interference. On a collective level, the right to self-determination empowers people to be the arbitrators of their own economic, social and cultural development. For indigenous peoples, this implies the right to preserve their unique social and cultural heritage. Despite certain provisions in national jurisdictions, such as the explicit protection of the ceremonial use of peyote by the Native Americans in the United States, there is currently no global consensus on how to balance the freedom of religion and right to self-determination against the prohibitionist implications of the international drug conventions.
Additionally, in our globalised world, ‘native drugs’ spread beyond their original cultural context. In many places around the world, there is a growing interest in indigenous practices and traditional ceremonies, including the ingestion of psychedelic plants such as ayahuasca.
‘[However], if ethno-religious groups enjoy privileged legal access, outsiders will attempt to join them for any number of reasons, from spiritual enlightenment with new drugs to immunity for using prohibited ones. Alternatively, they will […] establish their own religious groups and seek legal protection for what would otherwise be illegal activities.’
In the light of the unceasing interest in psychedelic substances, some scholars argue for a so-called ‘right to cognitive liberty’. As a conceptual development of a combined reading of the right to privacy and the freedom of conscience, the right to cognitive liberty would entitle a person to alter their consciousness as they wish. One of the most effective ways of doing this is with psychedelic substances, which happen to be illegal under most national jurisdictions, with the above-mentioned exceptions for certain traditional applications.
Most psychedelics are subject to ‘blanket prohibition’, despite them being less harmful, respectively, than other legally available drugs. However, it can be argued that this is incoherent with the human rights principles of ‘non-discrimination’ and ‘proportionality’. Drugs should be treated similarly under law to other drugs with similar harms or applications; any difference in treatment must be both proportional and very well-justified. Equally, under the right to privacy, everyone should have the right to do whatever he/she wants, as long as their actions don’t come in conflict with the human rights of others. Considering the relatively low risk nature of psychedelics, their continued prohibition and classification alongside heroin and other more harmful substances represents a legally unjustified paternalism.
Undoubtedly, psychedelics are a way of achieving different states of mind. Through preventing us from access to such substances, the state clearly violates our inherent right to control our own consciousness, through whatever means, thereby depriving us of mechanisms to influence both the contents and processes of our thinking, perception and imagination. Through restrictive policies, states ultimately limit the individual and collective potential for self-inquiry, self-development and self-transformation. To put it bluntly, as a consequence of such narrow-minded politics, nation states limit people in their most natural right to strive to improve their lives, at least in this very particular realm.
Many of the reasons why people enjoy taking psychedelics recreationally, and why they have been used in traditional and spiritual practices, also lend themselves to the medical field. After decades of prohibition, and a long and continuing battle, psychedelic drugs are once again being included in scientific trials at renowned universities around the world – with quite stunning results. In a few years, it could be normal to treat post-traumatic stress disorder with MDMA, depression with LSD, and to attend magic mushroom-assisted therapy sessions to give up smoking. In fact, there is a growing knowledge base which suggests that psychedelics may contribute to the treatment of any number of ailments, from cluster headaches to drug dependence, even being used to help terminally ill people to cope with the prospect of death.
Under human rights law, every person has the right to the highest attainable standard of health. Although this right can be referred to when discussing other illicit drugs such as cannabis, it is important that it is specifically mentioned in relation to psychedelics. The medical conditions, including cluster headaches, serious depression and substance dependence, where psychedelics have been shown to have a potential therapeutic application, are particularly difficult to treat with western medicine. If, as the first studies show, psychedelics are shown to be the best or only options for some patients, then a right to access them can certainly be assumed under the right to health. In a Johns Hopkins pilot study of psilocybin-assisted therapy for quitting smoking, for example, 80% of participants were still smoke free after 6 months – 45% more than with the next best alternative treatment. As the evidence grows, patients have an ever-stronger claim to a human right to use psychedelics – as medicines, at least – under the right to health.
Because fewer people use psychedelics, as compared to other drugs, and because of their relative safety, it can happen that they are slightly overlooked in drug policy discourse, or bundled in with other substances and approaches. Harm reduction, for example, has been one of the most effective tools for changing public perception of drug use (as well as saving lives), but it will never be the driving force in changing attitudes to psychedelic substances. The points above represent some of the human rights arguments specifically relevant to the promotion of sensible psychedelic drug policy.
It is clear that looking at different drugs, or groups of drugs, separately can result in stronger and more nuanced arguments for human rights-based drug policy reform. The same can be done for cannabis (sometimes also classified as a psychedelic), with its more accepted medical applications; heroin, where harm reduction plays a huge role and where so many of its connections to human rights are associated to its illegality; as well as all other illicit substances and their unique history, production methods, transit routes, harms, applications and legal statuses.
Kate Thompson is a researcher, working on drug policy and other human rights issues. Tweets @kthrnthmpsn
Petr Kudêlka is a legal researcher, working on policing practices, privacy, data and animal rights.