“Legalize It!?” – Opportunities and Challenges for the Regulation of Cannabis under European Law

• Date: 12 April 2023
• Year: 2023
• Author: Prof. Dr. Daniel-Erasmus Khan,Dr. Oliver Landwehr
• Pages: 91
• DOI: https://doi.org/10.30709/eucrim-2023-004

I. Background

On 26 October 2022, the German government adopted key principles for the controlled sale of cannabis to adults for recreational purposes.¹ Following up on their bold promise in the Coalition Agreement, according to which the three parties forming the current government “will introduce the controlled sale of cannabis to adults for recreational purposes in licensed shops,”² the concept paper outlines how the production, supply, and distribution of recreational cannabis would be authorised within a licensed and state-controlled framework. This effort aims to strengthen harm reduction³, improve the protection of minors and the health of consumers, and curtail the black market. While the proposal enjoys broad support in society and was welcomed by civil society organisations active in the field of harm reduction, it has also encountered resistance from conservative parties and critical voices in the legal literature, who question its legality. This is not surprising as the German plans go beyond any existing efforts to decriminalise or regulate cannabis in the European Union (EU). At the same time, the German plans represent the only consistent and comprehensive model in the EU, and possibly even in the world. Therefore, the issue whether they are compatible with existing EU law deserves attention. Before turning to that question, however, we will first briefly present the international drug control regime, and analyse why it has failed and possibly done more harm than good.

1. The international drug control regime

There can be no doubt that drugs⁴ are dangerous. As the virtually universal Single Convention on Narcotic Drugs of 1961⁵ (the Single Convention) reminds us in its preamble, “addiction to narcotic drugs constitutes a serious evil for the individual and is fraught with social and economic danger to mankind.” Yet the preamble also recognises that “the medical use of narcotic drugs continues to be indispensable for the relief of pain and suffering.” Moreover, humans have been using some form of mind-altering substances throughout the history of humankind.⁶ Against this backdrop, it hardly comes as a surprise that two (opposing) paradigms have dominated drug control regimes over the last century: prohibition and regulation. Historically, the USA has been a champion of prohibition, while producing,⁷ manufacturing,⁸ and consuming states (led by Turkey, the United Kingdom, and other European countries) have been favouring a regulatory approach.⁹ More recently, however, these roles seem to have been partly reversed.

a) A brief history of drug control¹⁰

Over the past two centuries, the answer to the crucial question how to deal with drugs has always been closely linked to both economic interests and general developments in the political-societal sphere. In the mid-18^th century, when France and Britain twice used military force in the Far East, they did not do so in order to fight the drug trade but rather to open up the Chinese market for opium, particularly originating from India. The notorious “Opium Wars”¹¹ forced China to end the enforcement of its prohibition against opium trafficking by British merchants and to legalise the opium trade. It is safe to assume that these conflicts, along with various treaties imposed during the “century of humiliation”, caused a national trauma that still resurfaces during present-day discussions about cannabis legalisation by Western countries and helps to explain China’s visceral opposition to any such plans.

It was not until 1907 that Britain, China, and India agreed on a trilateral framework for ending Indian opium exports to China within ten years.¹² Two years later, the Shanghai Opium Commission was initiated under US leadership as the first multilateral drug control meeting to examine ways of suppressing international opium traffic, and in particular traffic bound for China. While the meeting only made recommendations, it led to the 1912 Hague Opium Convention, the first international drug control treaty.¹³ In 1925, the Geneva Opium Convention¹⁴ established the first mechanisms to enforce a supply control framework. It created the Permanent Central Opium Board (PCOB), one of the forerunners of today’s International Narcotics Control Board (INCB)¹⁵, to monitor international imports and exports of narcotics. Further conventions were adopted in 1931 and 1936. Repeatedly, the United States tried but failed in all these negotiations to obtain a ban on all “non-medical and non-scientific” drug use. This approach must also be seen against the backdrop of alcohol prohibition in the United States, where the Eighteenth Amendment to the Constitution was ratified by the requisite number of states in early 1919, prohibiting the production, importation, transportation, and sale of alcoholic beverages from 1920 until it was repealed in 1933.

After World War II, the United Nations (UN) became the custodian of the existing treaties. In 1946, a functional commission of the UN Economic and Social Council (ECOSOC), the Commission on Narcotic Drugs (CND), was set up to serve as the policy-making body of the UN system with prime responsibility for drug-related matters. In 1948, the Synthetics Protocol brought synthetic narcotics under international control for the first time. The United States again tried to impose more severe limitations on the agricultural production of opiates through the 1953 Opium Protocol. However, as it was rejected by agricultural producing and consumer countries, as well as moderate states, it never entered into force. Instead, the 1961 Single Convention on Narcotic Drugs consolidated previous conventions into one document (hence the name). It applies to opioids, coca, and cannabis. As countries with important pharmaceutical industries refused to extend the scope of the Single Convention to psychotropic substances, a separate convention was negotiated. The 1971 Convention on Psychotropic Substances¹⁶ (the 1971 Convention) brings psychotropic substances¹⁷ under international control, but is less stringent than the Single Convention.¹⁸

From the early 1970s onwards, the United States stepped up its supply-side targeting drug policies again. In June 1971, in a speech to the White House Press Corps, US President Richard Nixon declared a “war on drugs”. Although the restrictive, prohibitionist, and supply-side focussed US approach on drug policy dates back much longer, this speech is often seen as the beginning of a counter-productive and systemically racist domestic and international crusade that lasted several decades.¹⁹ The focus on trafficking also led to the adoption of the 1988 UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances²⁰ (the 1988 Convention), which aims at tackling organised crime and drug trafficking. It also introduced extensive precursor²¹ controls.

These legal instruments were complemented by an institutional framework and non-binding resolutions and declarations. In 1972, a UN Fund for Drug Abuse Control (UNFDAC) was created. The Fund and the United Nations Drug Control Programme later merged with the Crime Fund and the Centre for International Crime Prevention to form what is today the United Nations Office on Drugs and Crime (UNODC), an organisational unit of the UN Secretariat headquartered in Vienna, Austria. UNODC also acts as the Secretariat to the CND and hosts its annual sessions. In the 1990s, the UN General Assembly also turned its attention to the topic. At a UN General Assembly Special Session (UNGASS) in 1998, states committed to massive reductions in drug use and supply within ten years and coined the slogan, “A drug free world. We can do it!” Almost 20 years later, the third UNGASS in 2016 was more realistic and marked a break with traditional “war on drugs” approaches, even though it failed to break with the prohibitionist paradigm.²²

Nevertheless, since the 1990s, a new paradigm in drug policy has emerged that recognises that there will always be some people who will use drugs, and some people who may be unwilling or unable to stop using drugs. This concept, called “harm reduction”, therefore promotes policies, programmes, and practices that aim to minimise the negative health, social, and legal impacts associated with drug use, drug policies, and drug laws. Harm reduction focusses on positive change, and on working with people who use drugs without judgement, coercion, discrimination, or requiring that they stop using drugs as a precondition of support. It is cost-effective, evidence-based, and human rights-centred. Examples of harm reduction measures are needle and syringe exchange programmes, opioid agonist therapy (such as methadone), drug checking (where drugs are checked for adulterants), and drug consumption rooms to reduce the risk of fatal overdose.

b) The international drug control conventions

As countless resolutions of the CND remind us, three UN conventions form the “cornerstone” of the international drug control regime: the 1961 Single Convention, the 1971 Convention on Psychotropic Substances, and the 1988 Anti-trafficking Convention (the Conventions).²³ None of these Conventions contains a comprehensive and unconditional obligation for states to impose criminal sanctions on (all forms of) drug possession and/or use.

• The 1961 Single Convention obliges its parties to limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade in, use, and possession of drugs (Art. 4(c)). Drugs are defined as the substances listed in “schedules” to the Convention (Art. 1(j)).²⁴ Cannabis and cannabis resin, extracts, and tinctures are listed in Schedule I.²⁵ Art. 36(1)(a) contains penal provisions which obliges any party, “subject to its constitutional limitations,” to make certain actions, including the possession of drugs, punishable offences. However, subpara. (b) allows for alternatives to conviction or...