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  • Print publication year: 2019
  • Online publication date: November 2019

Chapter 2 - Cannabis Regulation on the Basis of Positive Human Rights Obligations?

Summary

INTRODUCTION

Pleas for regulating cannabis cultivation and trade for recreational use are oft en based on arguments that relate to the interests of (individual and public) health, the safety of citizens, preventing nuisances and fighting crime. Therefore, the key question in this chapter is:

To what extent can regulation of cannabis cultivation and trade for recreational use, for the sake of public health, safety and crime control, be married up to positive human rights obligations that ensue from international human rights conventions?

In order to answer that question, we will first look more specifically at the right to health. This particularly concerns the positive obligations for states to promote public health on the basis of this right. Subsequently, the rights to life, physical and psychological integrity and a private life and the way they interrelate will be covered, in particular the ensuing positive obligations for states to guarantee the safety of its citizens and to fight crime. Our examination is grounded in positive law: we will analyse which rights and obligations arise from international human rights conventions and international case law on them. It most certainly is not a prescriptive assessment: we are not arguing which rights and obligations should be derived from the conventions.

The analysis of the right to health is primarily based on the International Covenant on Economic, Social and Cultural Rights (UN, 1966) (ICESCR) and the jurisprudence, commentaries and observations of the Committee on Economic, Social and Cultural Rights (ICESCR Committee or CESCR). We will also pay attention in particular to the (Revised) European Social Charter (CoE, 1961/1996) (ESC), as well as the considerations about it of the European Committee of Social Rights (European CSR or ECSR).

The most important basis for the discussion of the rights to life, physical and psychological integrity and a private life is the International Covenant on Civil and Political Rights (UN, 1966) (ICCPR) and the jurisprudence, commentaries and observations of the Human Rights Committee (HRC). Obviously, we will also dwell on the European Convention on Human Rights (CoE, 1950) (ECHR) and the corresponding jurisprudence of the European Court of Human Rights (ECtHR).

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