The regulated cultivation and trade of cannabis for recreational use is permissible on the basis of states' positive human rights obligations. This is the result of research by Legal scholars Piet Hein van Kempen and Masha Fedorova of Radboud University in Nijmegen, the Netherlands.
Pleas for the regulated cultivation and trade of recreational cannabis are often based on arguments related to individual and public health, the safety of citizens and the fight against crime: the so-called positive human rights obligations. To date, however, no study has been carried out to find out what the legal implications of legalizing cannabis would be. International law and cannabis II (Internationaal recht en cannabis II) is the first study into cannabis and positive human rights obligations.
Human rights obligations versus drug conventions
The study of the Legal scholars Piet Hein van Kempen and Masha Fedorova shows that these positive human rights obligations can require states to provide regulated legalization of the cultivation and trade of recreational cannabis if this regulation were to protect human rights more effectively than a total ban on drugs, as defined in the U.N. Drugs Conventions.
The researchers' analysis also resulted in an affirmative answer to another crucial question: From an international law perspective, should states give priority to their positive human rights obligations over their obligations resulting from the U.N. Drug Conventions?
In their research Van Kempen and Fedorova concluded that the U.N. Drugs Conventions as such do not allow for the regulated legislation of the cultivation and trade of cannabis for recreational use. Thus, their new study offers new insights from a human rights perspective.
The five primary conditions for regulated legalization are:
1. This must be in the interest of the protection of human rights.
2. The state must demonstrate that the regulated legalization of the cultivation and trade of cannabis will result in the more effective protection of human rights.
3. The decision regarding such regulation must have public support and must be decided through the nationwide democratic process.
4. There must be a closed system so that foreign countries are not disadvantaged in any way by this measure.
5. The state is required to actively discourage cannabis use.
If a state can meet these conditions, under current international law it is permissible to give priority to human rights obligations over the obligations of the U.N. drug conventions.
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