Is Smoking Weed a Human Right?

Why the Mexican Supreme Court thinks the answer is yes

A pro-marijuana rally outside the Mexican Senate (Tomas Bravo / Reuters)

Last week, just a day after voters in Ohio rejected a constitutional amendment to legalize the recreational and medical use of marijuana, Mexico’s Supreme Court headed in a different direction: The country’s top justices concluded that national laws making it illegal to personally produce, possess, and consume marijuana violated the rights of Mexicans. The ruling itself has received considerable attention, but the rationale behind it less so. The high court’s decision was based not on marijuana’s effects on public health or impact on incarceration rates, but on fundamental human rights. In that respect, it’s pretty precedent-setting globally.

This particular case was brought by four members of the Mexican Society for Responsible and Tolerant Consumption (or SMART, in Spanish). The group first filed a legal petition demanding the right to grow, own, and use marijuana in 2013—a petition that was initially denied but later appealed to the Supreme Court. SMART was in part driven by a desire to reduce Mexico’s rampant drug-related violence, according to The Wall Street Journal; as Armando Santacruz, one of the plaintiffs, told the paper, “We aren’t a bunch of dope heads.” Another plaintiff reportedly doesn’t even smoke marijuana, and doesn’t expect to start anytime soon.

Arguments to legalize weed often have a criminal-justice component. Some advocates maintain that outlawing marijuana results in unnecessary or excessive jail time for those who violate the law; the deputy director of the Washington, D.C.-based National Organization for the Reform of Marijuana Laws noted in U.S. News & World Report in 2012 that U.S. law enforcement had made over 22 million arrests for marijuana violations since 1965. The drug-policy director at the American Civil Liberties Union wrote in the same publication that the U.S. marijuana market provides Mexican drug cartels with approximately $1.5 billion a year. These arguments resonate beyond the United States; Uruguayan President Jose Mujica, who supported the legalization of marijuana in his country in 2013, cited the importance of disempowering drug traffickers. Others point out the inconsistency of prohibiting the use of marijuana while allowing alcohol and tobacco, despite the former arguably carrying no greater health risks than the latter. Still others reference the revenue that regulation of the marijuana market could bring to governments.

SMART decided to take a different tack, according to Andres Aguinaco, one of the group’s lawyers. In October, Aguinaco told Fusion that SMART’s strategy was “different from the overall legalization debate [in Mexico], which focuses on drug-war death tolls and disappearances.” Instead, “we’re arguing that the government is infringing on the constitutional doctrine of the free development of personality.”

This argument is fleshed out in a court document posted to SMART’s website, wherein the group makes the case that using marijuana is just one way for individuals to differentiate themselves from the rest of society, and that since the Mexican constitution protects the individual’s right to be unique and independent, the state cannot infringe upon that right when the consequences of marijuana consumption—be they positive or negative—only affect the individual who chooses to use the drug. “The imposition of a single standard of healthy living is not admissible in a liberal state, which bases its existence on the recognition of human uniqueness and independence,” the plaintiffs contended. Or, as Aguinaco explained to Fusion, “The state cannot prohibit you from eating a bunch of tacos because it’s bad for your health.”

Evidently, this argument was ultimately persuasive; Justice Olga Sanchez, voting in favor of the ruling, said, “This court recognized the reach of personal freedom.” Still, the Supreme Court’s decision does not legalize marijuana throughout Mexico. Far from it: The ruling only applies to the four plaintiffs, who are now, incredibly, the only people in a country of 125 million who can legally get high off pot. In order for marijuana to become legal, the Supreme Court would have to deliver similar rulings at least four more times—the process by which same-sex marriage was legalized in Mexico earlier this year, according to The Washington Post. The national legislature could also legalize marijuana of its own accord, if legislators so choose.

SMART’s argument for sanctioning marijuana use isn’t entirely unprecedented. Several cases concerning drug possession in Canada have invoked human-rights language, according to Hannah Hetzer, who focuses on the Americas at the Drug Policy Alliance, a New York-based nonprofit that opposes the U.S.-led “war on drugs.” A 1994 constitutional court case in Colombia also leveraged the language of the “free development of personality” in arguing against the criminalization of drug use. But for the most part, Hetzer told me, “human rights or liberty have formed part of the argument, not the basis for the whole argument, so this case [in Mexico] is pretty unusual.”

Does that mean the novel argument could gain traction outside Mexico? The right to the “free development of personality” appears in Article 22 of the UN’s Universal Declaration of Human Rights. According to Daniel Lansberg-Rodriguez, a fellow at the Comparative Constitutions Project and an Atlantic contributor, the countries in the Americas that incorporate the UN declaration into their constitutions include Belize, Bolivia, Nicaragua, and Peru. The United States has no such provision. Lansberg-Rodriguez added that any motion to legalize marijuana elsewhere in Latin America would be more likely to come via legislation or the writing of a new constitution than via a decision like the Mexican Supreme Court’s. Unlike the U.S. Constitution, the civil-law codes that predominate in the region do not lend themselves to judicial interpretation, he said.

Hetzer nevertheless believes that the Mexican ruling was “symbolically monumental … because it was argued on human-rights grounds and because it’s coming out of Mexico, which has a certain legitimacy when it’s talking about drug policy.”

“It’s one thing if Uruguay decides to legalize marijuana, where they’re not as affected by drug trafficking and the drug trade; it’s another when Mexico or Colombia stands up and says, ‘We have tried everything. This approach hasn’t worked, so now we’re going to look for alternative approaches,’” she argued.

Hetzer added that in Latin America alone, initiatives to reform marijuana laws are being debated in Brazil, Chile, Colombia, Costa Rica, and Mexico. Given that Canada’s new prime minister, Justin Trudeau, has pledged to legalize marijuana, and that legalizing weed is on the 2016 ballot in Arizona, California, Maine, Massachusetts, and Nevada, you could say reform is on the agenda for the entire hemisphere. Few countries may declare smoking weed a human right, but they may end up in the same place as Mexico just the same.