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Summary

What legal avenues are there to regulate cannabis cultivation and trade for recreational use? This question has generated heated discussions in various societies, in political and academic discourses. Several states are considering or have adjusted their legal and policy approaches towards a more lenient regulation of cannabis cultivation and trade for the recreational user market. These discussions have been the overture for two academic studies that we have conducted recently.

The first study focused on the question to what extent are domestic initiatives involving regulation of cannabis cultivation for recreational use compatible with the relevant UN narcotic drugs conventions and European Union law. It was this question that took centre stage in the political discussion in the Netherlands at that time. The results of this study were presented to the Minister of Justice and Security in the Netherlands in 2014. Because of the limitation of this first study to the framework of UN and EU law regulating drugs only, we decided to complement our research by involving international law more broadly and by looking more specifically at the positive human rights obligations.

The second study covered two questions. First, to what extent can regulation of cannabis for recreational use, for the sake of health, safety and crime control, be considered a positive human rights obligation resulting from the right to health, the right to life, the right to physical and psychological integrity and the right to privacy. In the event this obligation can be established, the second question concerned the hierarchical relationship between these positive human rights obligations and the obligations arising from the UN drugs conventions and EU anti-drugs laws. This second study was presented to politicians in the Netherlands in 2016. Since that time, the developments in the Netherlands have progressed to the extent that the government has decided to set up an experiment for legal supply of cannabis to point-of-sale for recreational use. The legislation concerning this experiment is being prepared as we speak.

See also volume II, Regulation of Cannabis Cultivation and Trade for Recreational Use: Positive Human Rights Obligations versus UN Narcotic Drugs Conventions, here. Both volumes can also be purchased as a set here. What legal avenues do states have to regulate cannabis cultivations and trade for recreational use? This question has generated heated discussions in various societies, in political and academic discourses. Several states are considering adjusting or have adjusted their legal and policy approaches towards a more lenient regulation of cannabis cultivation and trade for the recreational user market. This book addresses the legal question to what extent domestic initiatives involving the regulation of cannabis cultivation for recreational use are compatible with the relevant UN narcotic drugs conventions and European Union law. To this end, the book provides a comprehensive and detailed analysis of the UN Single Convention on Narcotic Drugs (1961), as amended by the Protocol in 1972, and the UN Convention against Illicit Traffic in Narcotic Drugs (1988). The relevant European law is also considered, particularly the so-called Schengen acquis (1985 Agreement and 1990 Implementation Agreement), the Joint Action on illegal drug trafficking (1996) and the Framework Decision on Illegal Drug Trafficking (2004). This analysis forms the basis for an evaluative framework for various initiatives that have advanced the regulation of cannabis cultivation for reactional use in several states, such as the 'coffeeshop system' in the Netherlands, the steps towards legalization of cannabis in several states in the Americas and Canada and the phenomenon of Cannabis Social Clubs. Piet Hein van Kempen, LLM, PhD, and Masha Fedorova, LLM, PhD, are Full Professors of Criminal Law and Criminal Procedure Law at the Faculty of Law of Radboud University, Nijmegen, the Netherlands.

Summary

RATIONALE AND PURPOSE OF THE RESEARCH

In our first book on International Law and Cannabis I, a legal analysis leads us to the conclusion that the UN narcotic drugs conventions and the EU laws on drugs leave no room for legalization, decriminalization, policy-based tolerance and/or other forms of regulation of cannabis cultivation for the recreational user market. Because of the obligations for states arising from these international instruments with respect to fighting drugs, there is no room for regulating the cultivation of cannabis for supplying points-of-sale (wholesale, retail shops), in the context of so-called Cannabis Social Clubs or via other modalities involving recreational use of cannabis by third parties. This conclusion about the international drug regulations still stands as far as we are concerned.

This does not alter the fact that the above-mentioned book is limited in scope. It concerns itself only with the international drug regulations, not with the way these relate to other legal norms. At the time, there was a lot to be said for that focus and that is still the case even now, for reasons of substance and research methodology. In that respect, a perspective that had been much wider from the outset would have made it considerably more difficult to get a grip on the detailed and multi-layered subject matter of those drug regulations. However, this does not in any way imply that the wider perspective is of no relevance. In the aforementioned book, we have therefore explicitly pointed out that international human rights may be germane to the discussion about the cannabis issue – that is to say: the question whether it is legally permissible under international law to regulate cannabis cultivation and trade for the recreational use of cannabis.

That potential relevance of international human rights depends, among other things, on arguments that are presented in favour of the regulated permission of cannabis cultivation and trade. After all, opinions to that effect are oft en based on considerations that individual and public health, the safety of individuals, preventing nuisances and fighting crime would be achieved better with such tolerance than with a more prohibitive and repressive policy on drugs and/or cannabis. That is interesting from the point of view of human rights, since human rights conventions give rise to, among other things, positive obligations to protect individual and public health, the safety of citizens and to control crime.

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:

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?

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).

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).

See also volume I, Regulation of Cannabis Cultivation for Recreational Use under the UN Narcotic Drugs Conventions and the EU Legal Instruments in Anti-Drugs Policy, here. Both volumes can also be purchased as a set here. What legal avenues do states have to regulate cannabis cultivations and trade for recreational use? This question has generated heated discussions in various societies, in political and academic discourses. Several states are considering adjusting or have adjusted their legal and policy approaches towards a more lenient regulation of cannabis cultivation and trade for the recreational user market. Seen from the perspective of relevant United Nations narcotic drugs conventions, the legal avenues for regulation are virtually non-existent. This book takes an innovative approach to this issue and approaches the possibility for regulation of cannabis for recreational use from the perspective of positive human rights obligations. To what extend can regulation of cannabis for recreational use, for the sake of health, safety and crime control, be considered a positive human rights obligation resulting from the right to health, the right to life, the right to physical and psychological integrity and the right to privacy? From the subsequent conclusions, a second pertinent question arises: what hierarchical relationship, if any, exists between these positive human rights obligations and the obligations arising from the UN drugs conventions? Through an in-depth and systematic analysis of relevant international human rights law and public international law, this book presents the steps, assumptions and conditions that are relevant if a state were to decide, on the basis of the incumbent positive human rights obligations, to permit cannabis cultivation and trade for the recreational user market under regulation. PIET HEIN VAN KEMPEN, LLM, PhD, and MASHA FEDOROVA, LLM, PhD, are Full Professors of Criminal Law and Criminal Procedure Law at the Faculty of Law of Radboud University, Nijmegen, the Netherlands.

Summary

INTRODUCTION

The central theme of the previous chapter was positive obligations pursuant to human rights conventions. We arrived at an affirmative answer to the key question whether regulation – through legalization, decriminalization or a policy of tolerance – of cannabis cultivation and trade for recreational use can be advocated on the grounds of rights and obligations that ensue as positive law from international human rights treaties and conventions. A strong case, and indeed the strongest case, can be made that such regulation under certain circumstances can even qualify as a positive obligation to protect human rights. This conclusion is supported by both the right to health in the ICESCR and the ESC and the rights regarding life, inhuman treatment and privacy in the ICCPR and the ECHR.

When we discussed and analysed the human rights conventions in the previous chapter, we did not take into account the obligations that states have under the UN narcotic drugs conventions. With regard to cannabis, the following conventions are particularly relevant: the Single Convention on Narcotic Drugs as amended by the Protocol amending the Single Convention on Narcotic Drugs (Single Convention), and the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (Illicit Traffic Convention). As we saw in our first book, International Law and Cannabis I, these drugs conventions undeniably aim to contribute to the interests of public health (object and purpose). These conventions do so in three ways: 1. Availability of narcotic drugs as meaningful and/or effective medicine or research into this; 2. Treatment of and care for drug users so as to wean them off these narcotic drugs; 3. Protecting society against narcotic drugs by fighting and eliminating the production, trade, possession and use of these drugs for recreational purposes by means of criminal law and many other social prohibitions and measures. Therefore, the drugs conventions do not aim to guarantee public health in a general sense, they actually imply this guarantee must be achieved strictly by applying the three above-mentioned specific perspectives. As we concluded before: the UN narcotic drugs conventions actually reveal a limited, one-sided and rigid interpretation of public health interests.

Summary

INTRODUCTION

Regulated permission of cannabis cultivation and trade for recreational use in the interest of individual and public health, security and crime control can be based on positive human rights obligations that arise from international human rights conventions. Under international law, states must give priority to those positive obligations over and above any obligations under the UN drugs conventions if they interfere with each other. If the above-mentioned basis is there, states have the possibility under international law to regulate cannabis despite their obligations under the UN drugs conventions.

This is the gist of the answers to the two main questions in this book, which have been explored at length in the preceding chapters. Together, they provide a qualified – in other words: subject to conditions – positive answer to the cannabis issue. We will therefore not summarize the nuances and corresponding analyses that apply to these conclusions again; please refer to sections 2.5 and 3.12. Instead, we will discuss the steps, assumptions and conditions that are relevant if a state were to decide, on the basis of the incumbent positive human rights obligations, to permit cannabis cultivation and trade for the recreational user market under regulation.

RELEVANT ARGUMENTS IN FAVOUR OF REGULATED PERMISSION

All four human rights discussed – to wit, the rights regarding health, life, inhuman treatment and privacy – give rise to positive obligations that can support regulated permission of cannabis cultivation and trade for the purpose of recreational cannabis use. This essentially concerns positive obligations incumbent on the state to protect individuals from the harmful effects – on life, health, physical and psychological integrity and privacy – of unregulated cannabis cultivation and trade. However, not all arguments with regard to individual and public health, safety and fighting crime that are presented to support permission under regulation are relevant for these positive obligations.

ARGUMENTS THAT ARE DIRECTLY RELEVANT FROM THE PERSPECTIVE OF POSITIVE OBLIGATIONS

First of all, the arguments involved in this research to support regulation that do have a basis in one or more of those positive human rights obligations.

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:

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Preface

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International Law and Cannabis I

About the Authors

Bibliography

Chapter 1 - Introduction

Summary

Frontmatter

List of Abbreviations

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

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Chapter 1 - Introduction

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Bibliography

Chapter 5 - Conclusion

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

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International Law and Cannabis II

Chapter 3 - Interference between Human Rights Obligations and Obligations under the UN Narcotic Drugs Conventions

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Chapter 4 - Synthesis and Conclusions

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Contents

List of Abbreviations

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

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Executive Summary of Volume II

List of Cases

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International Law and Cannabis I

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International Law and Cannabis II

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