Tania Morris Diaz, Vol. 37 Associate Editor
On November 4, 2015, the Mexican Supreme Court (SCJN) concluded by a 4-1 vote that recreational production, possession, and consumption of marijuana is a human right. As a means of understanding the road to marijuana legalization, this article presents a brief overview of Mexico’s evolving drug policy over the past two decades, what the decision means now, and what is needed next in order for Mexico to legalize marijuana.
It was not until the 1980s and early 1990s with the fall of Colombian drug trafficking organizations that Mexico’s role evolved from “mere couriers” to “wholesalers.” The inequality and poverty effects of NAFTA in Mexico strengthened these criminal organizations by providing cartels with a “huge pool” from which to recruit “foot soldiers.” It was at this time that Mexico felt the weight of an inherent imbalance in the supply-demand aspect of international drug trafficking. In 1993, Mexico wrote a letter to the Secretary General voicing a strong desire that international focus shift from production to consumption and a strong critique of U.S. counter-narcotics operations on Mexican territory. This ultimately sparked the first United Nations General Assembly Special Session (UNGASS) on the World Drug Problem in 1998.
In 2000, the Partido Revolucionario Institucional (PRI) lost its 71-year presidential monopoly with the presidential election of Vicente Fox, the candidate from the Partido Accion Nacional (PAN). The dissipation of PRI’s political influence, some say, caused an increase in cartel violence. During the PRI’s reign, the government maintained an arrangement with the cartels in which the state would turn a blind eye to the illicit conduct in exchange for profits and a promise to keep violence from seeping to the general population. However, in 2006 the second (and, thus far, last) PAN candidate to have been elected president, Felipe Calderon, took a more aggressive approach by launching war against the cartels garnering a vicious response by the cartels. The disappearance of 43 students last September represents this most recent trend in cartel violence. The “fragmentation” of large cartels backed by “international contacts” and massive resources has given way to groups “relying more heavily on other sources of criminal revenue, such as kidnapping, extortion and local drug peddling.”
Marijuana policy reforms in the mid-2000s were in response to this violence. Of the reforms presented, five have been in the federal level and two at the local and state level. In 2006, a bill decriminalizing consumption of recreational drugs and specifying maximum allowable amounts for personal use was passed in both the House and the Senate but vetoed by then-president Fox. Many analysts believe the president withdrew his initial support due to pressures from the U.S. Two year later, however, president Calderon “revive[d] the initiative” adding a distinction between “small-scale sales and drug addicts.” Continuing down this path, in 2009 the Small-Scale Trafficking Law amended the General Health Law, the Federal Criminal Code and the Federal Criminal Procedures Code allowing for possession of up to five grams of marijuana for personal consumption and guaranteed three detentions before one can be ordered to undergo obligatory addiction treatment. Since 2012, various reforms to decriminalize and regulate marijuana have been spearheaded by politicians from the Partido Revolucionario Democrático focusing mainly on “health protection, prevention and treatment rather than law enforcement impacting on users” and increasing the quantity thresholds.
Most recently, the marijuana debate was presented in the judicial arena with the SCJN’s decision ruling in favor of four activists of the group México Unido Contra la Delincuencia (Mexico United Against Crime) appealing Mexico’s drug regulatory agency’s denial of their application for a license to use marijuana. Remarkably absent from the opinion written by Justice Arturo Zaldívar was the violence which gave rise to the debate itself. Instead, the rationale was focused on human rights, specifically the right to free and full development of an individual’s personality and the right of self-determination. This makes the decision “precedent-setting globally” as it is the sole basis, rather than just one piece, of the argument. Moreover, since the decision is coming from Mexico it offers substantial international legitimacy and could certainly cause a ripple affect among other Latin American countries currently considering the issue or marijuana legalization measures.
Justice Zaldívar clarified that the decision in no way denies the fact that drug use has negative effects but that an absolute prohibition is disproportionate to the actual harm caused. Instead, he proposed there be regulation so as not to harm third parties such as restricting use from public places, as is done with tobacco smoke. Although Justice Jorge Pardo Rebolledo agreed with this reasoning, he was the sole dissenter as he believed the decision was hallow without any commercial regulation first. “How could I guarantee a right to free development of personality if the initial part of the chain of consumption, that is the purchase of marijuana seeds, is still considered a crime?”
However, the debate outside the courtroom is unquestionably about how the legality of cannabis could undermine drug violence, if at all. “It’s not a health debate” states an editorialist, it’s an economic debate dealing with legal consumers in the United States of a substance that grows illegally in Mexico. If the decision is based on human rights, why is the human rights abuse crisis that Mexico suffers from being forgotten? Furthermore, statistics indicate that legalization may not reduce the rampant violence since marijuana accounts for only 1/5th of the cartel’s annual revenue and there has been a “growing competition from high-quality pot farms” in the U.S. since various states have begun legalizing marijuana. However, legalization would certainly curtail the “institutional and social cost to enforcing the laws of marijuana.”
For now, SCJN’s ruling applies to the plaintiffs. Therefore, only four people of the 125 million in Mexico are legally allowed to grow and consume marijuana for personal use. The decision opened three doors for legal marijuana to be the law of the land; the Court’s criminal chamber must rule the same way four more times, eight of the eleven members of the full Court must vote in favor or the legislature can pass a law on its own accord. Yet, the road to legalization is bleak. President Peña Nieto opposes legalization, only 2% of the population smokes marijuana and 77% oppose legalization.
The human-rights argument in favor of drug legalization undoubtedly finds its basis in international law. Article 22 of the UN’s Universal Declaration of Human Rights includes the right to the “free development of personality.” Just as Justice Zaldívar balanced an individual human right with the harm caused to the individual and third parties, the question becomes to what extent can such harm be defined? If legalization were to cause criminal organizations to supplement their loss with extortions and kidnappings, could this be considered a harm to third parties? Furthermore, what can be said of a Supreme Court protecting an individual right theoretically practiced by a mere 2% of the population when far more are affected by other human rights abuses? The symbolic measure may have simply been an echo in pushing for a global policy shift to focus more on consumers (even if there are so few in Mexico) than producers (given that there are so many in Mexico) that was made decades earlier with the letter written to the Secretary General. This is strengthened even more by the fact that the SCJN decision is just a year before the next UNGASS. Overall, the decision certainly highlights and intertwines two prevalent issues facing Mexico at this time, namely human rights and drug trafficking; and, once again, Mexico has set the tone for UNGASS in 2016.
 June S. Beittel, Cong. Research Serv., R41576, Mexico’s Drug Trafficking Organizations: Source and Scope of the Rising Violence at 5 (2011).
 Deborah M. Weissman, Remaking Mexico: Law Reform as Foreign Policy, Vol. 35 Cardozo L. Rev. 1471, 1476 (2014).
 Martin Jelsma, The Unwritten History of the 1998 United Nations General Assembly Special Session on Drugs”, The Transnational Institute (Apr. 1, 2003,) https://www.tni.org/en/article/unwritten-history-1998-united-nations-general-assembly-special-session-drugs.
 Weissman supra note 2 at 1480.
 David Gagne, How 100 Years of Failed Drug Policy Gave Rise to Mexico’s Cartels, InSight Crime (April 6, 2015), http://www.insightcrime.org/news-analysis/how-100-years-failed-drug-policy-rise-mexico-cartels.
 Overview of Drug Policies, Drug Law and Legislative Trends in Mexico, The Transnational Institute: Drug Law Reform in Latin America, http://druglawreform.info/country-information/mexico/item/205-mexico#8 (last visited November 21, 2015).
 Mexican Law 2006-2012 Summary, The Transnational Institute: Drug Law Reform in Latin America, http://druglawreform.info/images/stories/SummaryMXLaw_2006-2012.pdf (last visited November 21, 2015).
 Id. Elisabeth Malkin & Azam Ahmed, Ruling in Mexico Set Into Motion Legal Marijuana, N.Y. Times (Nov. 4, 2015), http://www.nytimes.com/2015/11/05/world/americas/mexico-supreme-court-marijuana-ruling.html?_r=1.
 Edward Delman, Is Smoking Weed a Human Right? Why the Mexican Supreme Court Thinks the Answer is Yes, The Atlantic (Nov. 9, 2015) http://www.theatlantic.com/international/archive/2015/11/mexico-marijuana-legal-human-right/415017/.
 Id; See also Christopher Ingraham, Mexico’s Supreme Court rules that smoking pot is a fundamental human right, The Washington Post (Nov. 5, 2015), https://www.washingtonpost.com/news/wonk/wp/2015/11/05/mexicos-supreme-court-rules-that-smoking-weed-is-a-fundamental-human-right/.
 Jesús Aranda, Histórico amparo de la Corte sobre mariguana, La Jornada (Nov. 5, 2015), 003n1pol.
 Alejandro Paéz Varela, La Lección de los Aguacates, Sin Embargo (Nov. 9, 2015), http://www.sinembargo.mx/opinion/09-11-2015/41297.
 Carrie Kahn, Mexico’s Supreme Court Ruling Paves Way for Precedent on Marijuana Legalization, Nat’l Pub. Radio (Nov. 6, 2015), http://www.npr.org/2015/11/05/454907637/mexicos-supreme-court-ruling-paves-way-for-precedent-on-marijuana-legalization.
 Malkin & Ahmed supra note 12.
 Delman supra note 15.
 See Ingraham supra note 17.