Kenneth W. Tupper & Beatriz Caiuby Labate, Plants, Psychoactive Substances and the International Narcotics Control Board: The Control of Nature and the Nature of Control, Human Rights and Drugs, Vol.2, No.I, 2012

ABSTRACT

This article reviews and critiques the International Narcotic Control Board’s (INCB) 2010 Annual Report’s recommendation about plant materials containing psychoactive substances. It first provides an overview of the United Nations drug control system, then contextualises the INCB’s role in the UN system. Through a reading of the text of the INCB’s 2010 Report and references to contemporary practices of ayahuasca drinking based in fieldwork, the article shows how this Report fits into the international paradigm of the war on drugs and its conflicts with human rights. It is argued that the Board’s recommendation demonstrates an unwarranted attempt to extend the scope of its powers, conflates and thus misrepresents widely diverse plant materials and their effects, fails to distinguish between ‘use’ and ‘abuse’ of psychoactive substances and appears to assume that particular elements of culture—specifically, traditions involving psychoactive substance use—are, or should be, static, eternally frozen in time and place.

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Prohibition and religious freedom: Prince v South Africa (2000-2007)

“The test of tolerance as envisaged by the Bill of Rights comes not in accepting what is familiar and easily accommodated, but in giving reasonable space to what is “unusual, bizarre or even threatening”

Sachs J. (Dissent) Prince v President of the Law Society, 2002

Religious freedom and drug use is a flashpoint in drug control. It is widely accepted that many religious practices that include the use of psychotropic substances have been infringed by the global prohibitionist system. Indeed, in the 1961 Single Convention on Narcotic Drugs, traditional uses of coca, marijuana and other substances were recognised, and then given a 15-25 year grace period to be phased out.

While the Prince cases are not new, they are rarely cited in literature relating to drug control and human rights. But they are well worth a read for insights into the way South African courts, the African Commission on Human and Peoples Rights and the UN Human Rights Committee addressed the same question.

The case involved a law graduate denied access to the bar in South Africa due to his religious use of cannabis (he was a member of the Rastafari). His claim was that this prohibition amounted to a disproportionate infringement on the religious freedom of the Rastafari, requiring a religious exemption to the relevant criminal law.

By far and away the most in depth and insightful decision is that of the South African Constitutional Court. Mr Prince lost by 5-4. The judgment of Ngcobo J (now Chief Justice of the Constitutional Court) and the concurring judgment of Sachs J are especially strong. They were, however, in the minority. Note the frequent references to the “war on drugs” and international treaty obligations. Both the minority and majority judgments pointed to the international drug conventions to support their reasoning.

Indeed, Mr Prince lost in all of the fora where his case was heard. In each case the infringement of his right to freedom of religion was accepted, but deemed proportionate. Compare and contrast, however, the brief handling of the case by the African Commission and the side-stepping of the test of proportionality by the Human Rights Committee (para 7.3.), which must stand as one of the Committee’s poorer decisions.

Prince v President of the Law Society of the Cape of Good Hope (CCT36/00) [2002] ZACC 1; 2002 (2) SA 794; 2002 (3) BCLR 231 (25 January 2002)

Prince v South Africa (2004) AHRLR 105 (ACHPR 2004)

Prince v South Africa Communication No. 1474/2006 CCPR/C/91/D/1474/2006, 14 November 2007

‘Drugs and human rights: private palliatives, sacramental freedoms and cognitive liberty’ C. Walsh, International Journal of Human Rights, 2010

ABSTRACT

This paper reviews the impact of ten years of domestic incorporation of the European Convention on Human Rights (ECHR) on the evolution of the United Kingdom’s primary piece of prohibitive drugs legislation, the Misuse of Drugs Act 1971. The significant cases where traditional interpretation of this Act has been challenged in the courts using the Convention are discussed. Structured thematically, this paper looks at the interplay between drug prohibition and human rights in addressing complex issues, such as our right to self-medicate, to practice our religion(s) freely, and to explore our own consciousness. The intention is to expose the untapped potential of the ECHR as a tool with which to fundamentally challenge the (discriminatory) drug policy of the United Kingdom.

International Journal of Human Rights, Vol. 14, No. 3, May 2010, 425–441