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4622 results in Criminal Law

Page 52 of 232

  • Chapter 2 - Obligations under International Law Regarding Cannabis: UN Narcotic Drugs Conventions

  • Edited by Piet Hein van Kempen, Masha Fedorova
  • Book:
    International Law and Cannabis I
    Published by:
    Intersentia
    Published online:
    09 November 2019
    Print publication:
    05 September 2019, pp 11-100

  • Summary

    INTRODUCTION

    Cannabis first became subject to international control through the International Opium Convention of 1925 (the ‘1925 Convention’). This convention – to which the Netherlands was also a party – limited itself to regulation in connection with international trade. It did not prohibit the production of cannabis as such and did not impose any obligations on states with regard to the domestic trade in cannabis or its consumption. After the Second World War, the United Nations took over the supervision of multilateral drug control from the League of Nations. This led to a stricter control with a wider scope. The three most important instruments created for this purpose are:

  • 1. Single Convention on Narcotic Drugs, 1961 as amended by the Protocol amending the Single Convention on Narcotic Drugs, 1961 of 1972;

  • 2. Convention on Psychotropic Substances, 1971;

  • 3. United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988.

    • The second convention – the 1971 Convention on Psychotropic Substances – has no particular relevance for this book. Admittedly, delta-9-tetrahydrocannabinol (THC) is a psychoactive substance mentioned in Schedule II of the convention and occurs in cannabis, but because it is not common practice to extract that substance from cannabis, and such an extraction is not what this book is about, this convention will not be considered further. That will certainly not be the case for the other two conventions: they are key to this chapter.

    VARIATION BETWEEN PARTIES TO THE CONVENTION

    In the discussion of these conventions, we must take into consideration that the interests and policy insights of the states parties can vary considerably. For example, a distinction can be made between cultivating states (countries where the organic material needed for drugs is grown), manufacturing states (countries where synthetic production takes place), strong control states (countries that are culturally opposed to drug use and suffer from the consumption of drugs in their territory), weak control states (countries that consider drug control to be an internal affair and regard foreign intervention as a breach of their sovereignty), and neutral states (countries that have no clear-cut interests regarding drug control either way).

  • Chapter 1 - Introduction

  • Edited by Piet Hein van Kempen, Masha Fedorova
  • Book:
    International Law and Cannabis I
    Published by:
    Intersentia
    Published online:
    09 November 2019
    Print publication:
    05 September 2019, pp 1-10

  • Summary

    RATIONALE FOR AND PURPOSE OF THE BOOK

    The policy of tolerance regarding the sale of cannabis (marijuana/hemp/weed, grass and hash) in so-called coffee shops in the Netherlands continues to confront society, the authorities and supporters and opponents of this policy with difficult questions. An important issue is that the cultivation of cannabis to supply coffee shops does not form part of the policy and is therefore completely illegal. This is sometimes referred to as the back-door problem (as deliveries to a coffee shop would take place at the back door). The resulting ambivalent situation around coffee shops leads to much dismay and discussion, including in the Dutch parliament. That discussion is partly about arguments and concrete plans of Dutch municipalities to arrive at regulated cannabis cultivation, as well as initiatives in other countries, which aim to provide such regulation. The discussion led to a promise by the Dutch Minister of Justice and Security to the Parliament to have the recent national and international developments and schemes in the area of cannabis cultivation assessed in the light of international legal frameworks arising from the UN narcotic drugs conventions and from relevant EU law. Until now, the position of the Dutch government on legalizing or regulating in another way the cultivation of cannabis for recreational use has been based on the findings in a report of the T.M.C. Asser Institute from 2005. The conclusion of this report is that under international law there is no room to permit the cultivation of cannabis for the supply of retail shops. The above-mentioned arguments and initiatives from within municipalities and also in other countries were the reason to carry out the further analysis of international law and an assessment based on this law. That is what we do in this research. This does not involve only the above-mentioned problems of supplying coffee shops, but also new developments, such as joint cultivation and consumption in so-called Cannabis Social Clubs.

    DEFINITION OF THE CENTRAL PROBLEM

    Against the background outlined above, the key question of this research is the following:

    To what extent are initiatives regarding the legalization, decriminalization, policy-based tolerance and/or other forms of regulation of cannabis cultivation for recreational use compatible with applicable international law as laid down in the UN narcotic drugs conventions and in European Union law?

  • Chapter 5 - Conclusion

  • Edited by Piet Hein van Kempen, Masha Fedorova
  • Book:
    International Law and Cannabis I
    Published by:
    Intersentia
    Published online:
    09 November 2019
    Print publication:
    05 September 2019, pp 207-220

  • Summary

    INTRODUCTION

    The need of citizens to have access to cannabis for recreational use poses all sorts of challenges to the authorities. In the Netherlands, for example, not only does the so-called soft drugs policy almost continually give rise to discussions, but it also brings up the legal, social and political conundrum of how the authorities should deal with the cultivation of cannabis for the supply of retail shops. Meanwhile, new phenomena are developing that generate similar questions. For example, the joint cultivation and consumption in so-called Cannabis Social Clubs. In several countries around the globe there are issues around cultivation, trade, distribution, sale and purchase of cannabis for recreational use. This makes the subject of this book topical, much-talked about and at any rate, socially relevant.

    The key question in this book, which strictly focuses on matters from a legal point of view, is whether legalization, decriminalization, policy-based tolerance and/or other forms of regulating cannabis cultivation for recreational use is permissible under international law on drug control. The assessment expressly also focuses on the question to what extent the arguments and initiatives for the regulation of cannabis cultivation in and outside the Netherlands can be squared with relevant international law such as European law and the UN narcotic drugs conventions. More specifically, this concerns the UN 1961 Single Convention on Narcotic Drugs as amended by the 1972 Protocol, the UN Illicit Traffic Convention, the so-called EU Schengen acquis, the EU 1996 Joint Action on Illegal Drug Trafficking and the EU 2004 Framework Decision on Illicit Drug Trafficking. The book does not look at the question of how cannabis use and the fight against this relate to individual freedoms and the duties of the state with respect to international human rights law.

    To arrive at substantiated answers to the questions addressed in this book, the preceding chapters contain an elaborate and detailed explanation and analysis of relevant international law. Apart from the above-mentioned international legal instruments, we have also reviewed the findings and opinions of the international bodies that are designated to supervise the said instruments, particularly those of the International Narcotics Control Board (INCB), the Commission on Narcotic Drugs (CND) and the Court of Justice of the European Union (CJEU).

  • Chapter 3 - Obligations under European Law Regarding Cannabis: EU Laws on Drugs

  • Edited by Piet Hein van Kempen, Masha Fedorova
  • Book:
    International Law and Cannabis I
    Published by:
    Intersentia
    Published online:
    09 November 2019
    Print publication:
    05 September 2019, pp 101-138

  • Summary

    INTRODUCTION

    Although the UN narcotic drugs conventions already constitute a strict and detailed drug control system that applies to the entire European Union, the fight against drugs is also the subject of legislation in the Union. This chapter provides an elaborate account and analysis of the EU laws on drugs insofar as these are relevant for cannabis cultivation for recreational use. Please note that the EU-framework is closely connected to the Single Convention and the Illicit Traffic Convention. In the case of the latter convention, the European Union itself is a party, with respect to the areas within the competence of the Union. The instruments of the Union only aim to supplement the UN narcotic drugs conventions. The reason for adopting additional instruments is that the member states (initially the signatories to the Schengen Agreement and eventually the entire Union) deem the measures in these instruments to be necessary to compensate for the negative effects of the abolition of checks at the internal borders within the Union. Therefore, the key question in this chapter is twofold. First: what is the extent of the obligations under the EU laws on drugs regarding cannabis cultivation? Secondly: to what extent and in what manner does European law supplement the obligations that ensue from the UN narcotic drugs conventions? In a European context, there are three important instruments:

  • Schengen acquis (1985 and 1990)

  • Joint Action of the European Union to combat drug addiction and to prevent and combat illegal drug trafficking (1996)

  • Council Framework Decision laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking (2004).

    • The Schengen acquis, under which checks at the internal borders of the states parties are abolished with a view to completing the internal market, forms the first common framework for transnational cooperation in the area of combating the illicit trade in narcotic drugs, cannabis included. As a consequence of the creation of the European Union, the legal basis for the Union‘s action in the field of criminalizing and sanctioning illicit drug trafficking is found in Article 83 of the Treaty on the Functioning of the European Union (TFEU).

  • Chapter 4 - Assessment of the Arguments and Initiatives Regarding Regulation of Cannabis Cultivation

  • Edited by Piet Hein van Kempen, Masha Fedorova
  • Book:
    International Law and Cannabis I
    Published by:
    Intersentia
    Published online:
    09 November 2019
    Print publication:
    05 September 2019, pp 139-206

  • Summary

    INTRODUCTION

    The possibilities for and obstacles to regulated cannabis cultivation intended for recreational use are the fuel for extensive and sometimes fierce debate both in the Netherlands and in several other countries. This chapter contains an inventory and categorization of arguments and initiatives for the regulation of cannabis cultivation in and outside the Netherlands. These arguments and initiatives will be analysed and assessed in the light of the UN narcotic drugs conventions and the EU laws on drugs. This is primarily done on the basis of the explanations in Chapter 2 and Chapter 3, supplemented if necessary by further discourse about international law and EU law.

    The following starts with an inventory, categorization and evaluation of the legal arguments presented. It primarily concerns arguments relating to the UN narcotic drugs conventions and the EU laws on drugs. Secondly, all sorts of factual, social and political arguments set forth to legitimize the regulation of cannabis cultivation will be discussed. The last part before the conclusion constitutes an account, categorization and evaluation of modalities proposed in the Netherlands and introduced in other countries for the regulation of cannabis cultivation for recreational purposes. We note that the following inevitably contains many explanations that can already be found in Chapters 2 and 3, in a slightly different context or with a somewhat different wording.

    LEGAL ARGUMENTS FOR REGULATING CANNABIS

    Legal arguments for the regulation of cannabis for recreational use involve claims of existing legal room under positive law to this end. In addition, there are specific arguments arguing about the existence of discretion under public international law to regulate cannabis cultivation and trade. The following is an overview of these arguments, sorted by topic, and our discussion thereof in the light of the UN narcotic drugs conventions and the EU instruments.

    AMENDING THE RELEVANT UN NARCOTIC DRUGS CONVENTIONS

    First, arguments are presented that directly put the conventions centre stage in order to answer the question how any room for legal manoeuvring can be found in order to achieve regulation of cannabis cultivation and trade for recreational use. One argument suggests that legalization of cannabis cultivation can be achieved by amending the relevant UN narcotic drugs conventions.

  • 3 - Quantifying Criminal Procedure

  • Ric Simmons
  • Book:
    Smart Surveillance
    Published online:
    02 August 2019
    Print publication:
    22 August 2019, pp 65-83

  • Summary

    Chapter 3 examines the challenges of applying the cost–benefit analysis theory given the current legal stanrads used by courts. The cost–benefit analysis theory requires quantified costs and benefits, while the current legal system uses broad, descriptive standards to evaluate searches. The chapter notes that the current legal standards are inconsistently applied, and thus provide inadequate guidance to police who are attempting to follow these standards. The chapter also points out a dissonance between how judges apply the current standards and how lay people believe the standards should be applied. The solution is to quantify the legal standards, thus making the standards more transparent, allowing for a greater range of standards, and allowing the judges to use data from predictive algorithms as formal factors in deciding whether to allow a certain type of surveillance. This will also allow courts and policymakers to use the cost–benefit analysis theory more accurately and efficiently.

  • 8 - Hyper-Intrusive Searches

  • Ric Simmons
  • Book:
    Smart Surveillance
    Published online:
    02 August 2019
    Print publication:
    22 August 2019, pp 162-182

  • Summary

    Chapter 8 discusses the final category of technology enhanced surveillance: hyper-intrusive searches. These searches occur when law enforcement agents use surveillance technology to see and hear private, intimate information that would otherwise be undetectable. This category includes video monitoring of private places and real-time interception of oral or digital communication. This type of surveillance unquestionably needs greater regulation; the question is what form that regulation will take. This chapter notes that courts have a variety of different tools at their disposal that can make hyper-intrusive searches more productive, and provides guidance to courts as to which tools to use for each type of hyper-intrusive search.

  • 4 - Reactive Surveillance

  • Ric Simmons
  • Book:
    Smart Surveillance
    Published online:
    02 August 2019
    Print publication:
    22 August 2019, pp 84-101

  • Summary

    Chapter 4 discusses the topic of reactive surveillance, such as thermal imagers, decryption tools, and devices that reveal the phone numbers that are being dialed on a telephone. These are tools which the government needs in order to respond to privacy-enhancing technology used by private citizens. Although reactive surveillance tools can be very intrusive in some ways, in most contexts they are only being used to learn information that would ordinarily be public, but has been hidden by new forms of privacy-enhancing technology, such as heat lamps, encryption tools, and cell phones. In evaluating reactive surveillance, we need to consider both the level of criminal activity that is potentially masked by the privacy-enhancing technology, and how the privacy-enhancing technology has affected society’s expectations of privacy. In the context of encryption, we need to assist law enforcement even further, by creating a key escrow system which will give law enforcement the ability to decrypt any piece of data once they have obtained the proper legal authority

  • 2 - Measuring the Benefits of Surveillance

  • Ric Simmons
  • Book:
    Smart Surveillance
    Published online:
    02 August 2019
    Print publication:
    22 August 2019, pp 36-64

  • Summary

    Chapter 2 focuses on the benefits side of the cost–benefit analysis equation, and notes that the rise of big data’s predictive algorithms allow law enforcement to measure the likely success rate of their surveillance with far greater precision than in the past. These predictive algorithms have the potential to revolutionize criminal investigations in many ways, by making them cheaper, more accurate, and less biased. However, the surveillance technologies must be designed in ways to ensure that they meet the Fourth Amendment’s requirement of particularized suspicion and to ensure that they do not rely on tainted data.

  • 7 - The Third-Party Doctrine Dilemma and the Outsourcing of Our Fourth Amendment Rights

  • Ric Simmons
  • Book:
    Smart Surveillance
    Published online:
    02 August 2019
    Print publication:
    22 August 2019, pp 141-161

  • Summary

    Chapter 7 explores a specific aspect of mosaic searches: information that individuals turn over to private companies. Under the controversial third party doctrine, individuals surrender all Fourth Amendment rights when they share information with a third party. Most legal scholars criticize the third-party doctrine as anachronistic and a significant threat to privacy. This chapter will argue that the conventional wisdom is wrong, for two reasons. First, modern information sharing enhances our privacy; thus, some aspects of the third-party doctrine can be classified as reactive surveillance. But more importantly, the cost–benefit analysis theory reveals that this massive private collection of data is a positive-sum shift in surveillance. On the privacy side, corporations themselves can assert their own Fourth Amendment rights to keep this information secret – a phenomenon we are already seeing in many technology companies that store and transfer our data. On the security side, millions of companies are constantly collecting billions of pieces of data, all of which can be available to help solve crimes when the government can meet the appropriate standard to overcome the companies’ Fourth Amendment rights.

Page 52 of 232