1. Introduction and history

The Dutch government’s reaction to the phenomenon of substance use and specifically cannabis (re)emerging in western Europe in the sixties of last century has been somewhat of a distinguished nature.   

Many reports were published worldwide in the seventies with similar conclusions.[1] But the Dutch 1971 Hulsman Report and the Baan Commission’s Report of 1972 (www.drugtext .org/library/reports), actually led to a change of law and policy, by means of the change to the Dutch Opium Act on Illicit Drugs of 1976, which brought a distinction between drug users and traffickers. Drug use and possession for personal consumption were decriminalized.

At the same time, a distinction was introduced between illegal drugs with so-called unacceptable health risks (all other illicit drugs at the time) and cannabis products by means of a depenalization of the latter. The main goal was to create a separation of markets, preventing hard drug use and addiction.

A policy was developed over the years permitting the retail trade of cannabis products in so-called coffee shops under specific conditions through a system of prosecution guidelines called AHOJ-G: A = no advertisement or public display of products, etc.; H = no hard drugs (meaning all illegal drugs but cannabis); 0 = no nuisance and/or disturbance of public order; J = no sale to minors (anyone under 18 years of age); G = no wholesale (a maximum of 5 grams per transaction) and the involvement of the so-called Triangle Committee (mayor, chief of police, and district attorney.)

Now, some forty years later, as cannabis is by far the most commonly used illicit drug in Western Europe, still only in the Netherlands can one freely buy cannabis products in these cannabis retail facilities called coffee shops.

The cannabis products sold in these coffee shops are hashish (cannabis product) and marijuana (dried parts of the cannabis plant). Most of the hashish sold is imported from Morocco, but the vast majority of cannabis products sold in the coffee shops consists of so-called Nederweed.

This Nederweed, marijuana grown in the Netherlands and elsewhere in Europe, is produced both on a small scale and on a larger scale in a semiprofessional way. Although the retail trade of hashish and marijuana in the coffee shops is tolerated, no similar systems are applied toward the wholesale trade or production and growing of cannabis in the Netherlands.

In 1994, when Dutch marijuana started to become more dominant on the Dutch market, the Netherlands Institute for Alcohol and other Drugs (NIAD), where I was employed at the time, was concerned that the production of this marijuana would fall into the hands of organized crime. A law was proposed to regulate the Dutch cannabis market (www.drugtext.org/library/articles/ lexlap.html). This proposal did not pass Parliament, and the prosecution of Dutch cannabis production has since become a high priority for the Dutch police, with foreseeable results.

Today we may conclude that the intensified judicial attention on the supplying of coffee shops has pushed the coffee shops toward more criminal circles. These judicial interventions disturb the normalized supply patterns and even caused undesirable price increases ("The Czar's Reefer Madness," New York Times, August 26, 2006). A large number of coffee shops offer resistance to this drift toward a more criminal existence; the proprietors of these coffee shops would prefer a normal legal status with corresponding taxation and contributions, but the current legislation still prevents this. A solution for this dilemma would be to extend the guideline system to cannabis production, but although the hypocrisy of the current situation is realized by many parties, such as city mayors, judges, and scientists, the legislators have refused to consider this option, using international treaties, pressure, and politics as an excuse. It almost seems like the Dutch legislators suffer from an amotivational syndrome concerning cannabis.

In order to understand the recent political developments around the sale of cannabis products in coffeeshops in the Netherlands, a brief explanation of the Dutch political climate and recent history is required. 

The Netherlands are traditionally governed by a coalition of parties with a majority in parliament but during the last two years we saw an unusual minority government of the Christian Democrats (CDA) and the Conservative Liberals (VVD) sustained by the islamophobe party of Geert Wilders .

The Christian Democrats and the Islamophobe party had been taking an extremely conservative stance on drug policy, calling for the closure of all coffeeshops where the Conservative Liberals (VVD) called for better control and maintenance of the coffeeshops.

Furthermore, the Netherlands have received more or less constant crticism and international pressure on its cannabis policy by other european countries such as France and Germany, claiming that the coffeeshops encourage cannabis use in their countries.  At the same time in the south of the Netherlands (notably Maastricht) the stream of notably French and Belgian tourists visiting coffeeshops to buy cannabis, causing parking problems, started a debate on coffeeshop tourism.

The minority government’s minister of Justice, VVD’s mr Opstelten, came with an ambitious plan to curb this situation. A weedpass, allowing access to Dutch coffeeshops and cannabis, only available to Dutch residents. A legal verdict on this clearly discriminatory plan was sought of the European Court and this Court ordealed that only under special circumstances such as disturbance of the public order such discrimination could be allowed.

But than the minority government lost its majority support in parliament forcing last summer’s elections resulting in a political landslide towards the centre, where 2 parties have gained the vast majority and a situation with hardly a realistic alternative to their cooperation to form a government.

1.   

The VVD (Conservative Liberals) with 41 of the 150 parliamentary seats

2.    The PvdA (Social Democrats) with 39 of the 150 parliamentary seats

The PvdA’s party program calls for a licensing system for the production and sale of cannabis such as () but in the negotiations over the forming of a new government with the VVD a compromise was produced in which loss of face for justice minister Opstelten remaining in office clearly played an important part.

The “weedpass” plan was dumped instantly because it is clear that the results were rather disastrous. Such as an increase in dealing in the streets and also Dutch residents refused to apply to register for the weedpass  shifing the cannabis market away from the coffeeshops threatening the cornerstone of Dutch drug policy, the division of markets of soft and hard drugs.                

At the same time many Dutch mayors, including the mayors of all the larger cities of the Netherlands (especially of Amsterdam with over 200 coffeeshops) have strongly opposed the weedpass plan and banning of foreign visitor’s to come to the coffeeshops. It is estimated that around 10% of the tourists coming to Amsterdam, do this for the coffeeshops alone where around 30% claim they visit the Dutch capital to visit cultural sites such as musea and the coffeeshops. In other words the coffeeshops have become an important economic factor and vital element in the tolerant image of Amsterdam and the Netherlands.

The compromise calls for local solutions, allowing for example Maastricht to keep it’s coffeeshops closed for foreigners and Amsterdam to keep them open as it intended to do.  Another interesting phenemenon is that the new room for local policies has supported 17 towns such as Utrecht, Leeuwarden and Haarlem in their opinion that they want to curb the “backdoor” problem (production and delivery of cannabis to coffeeshops)  and desire a system allowing and controlling cannabis production.

Is this the end of the discussion of the “residency criterion”, not allowing foreigners in coffeeshops? By no means, because several court cases are under way in the south of the Netherlands where local government will have to prove that discrimation was necessary and the best solution to curb possible nuissance and public order problems in compliance with the verdict of the European court. 

Another issue worth mentioning is the potency of cannabis. The government compromise states that the amount of active ingredients in cannabis sold in coffeeshops should be maximised. A truly ambitious statement but totally out of sync with reality in a situation where the “backdoor”, production, provision and deliveries to coffeeshops are still illegal. Any laboratory testing cannabis before it reaches the coffeeshop is accessory to crime and  therefore there is simply no way for coffeeshops to comply with such demands even if it made any sense.

International legal aspects

Not a great deal has been published on the treaty implications of cannabis policies and even less on possible changes regulating production and sales to private parties. We have included a list of the existing publications known to us at the end of this article.

The most extensive publication on this subject is probably “Moving beyond stalemate” by Robin Room et al for the Beckley Foundation.[2] 

In this note we would like to refrain from an extensive analysis of all international treaties on substance use and stick to the ins and outs of cannabis regulation in the scope of the treaty at the basis of all  “drug treaties”, the UN Single Convention of New York, 1961.

Cannabis is specifically dealt with in articles 28 juncto 23 of the before mentioned Single Convention, New York 1961.

Article 28

1. If a Party permits the cultivation of the cannabis plant for the production of cannabis or cannabis

resin, it shall apply thereto the system of controls as provided in article 23 respecting the control of the

opium poppy.

2. This Convention shall not apply to the cultivation of the cannabis plant exclusively for industrial

purposes (fibre and seed) or horticultural purposes.

3. The Parties shall adopt such measures as may be necessary to prevent the misuse of, and illicit

traffic in, the leaves of the cannabis plant.

Article 23

NATIONAL OPIUM AGENCIES

1. A Party that permits the cultivation of the opium poppy for the production of opium shall establish,

if it has not already done so, and maintain, one or more government agencies (hereafter in this article

referred to as the Agency) to carry out the functions required under this article.

2. Each such Party shall apply the following provisions to the cultivation of the opium poppy for the

production of opium and to opium:

a) The Agency shall designate the areas in which, and the plots of land on which,

cultivation of the opium poppy for the purpose of producing opium shall be permitted.

b) Only cultivators licensed by the Agency shall be authorized to engage in such

cultivation.

c) Each licence shall specify the extent of the land on which the cultivation is permitted.

d) All cultivators of the opium poppy shall be required to deliver their total crops of opium

to the Agency. The Agency shall purchase and take physical possession of such crops as

soon as possible, but not later than four months after the end of the harvest.

e) The Agency shall, in respect of opium, have the exclusive right of importing, exporting,

wholesale trading and maintaining stocks other than those held by manufacturers of opium

alkaloids, medicinal opium or opium preparations. Parties need not extend this exclusive

right to medicinal opium and opium preparations.

3. The governmental functions referred to in paragraph 2

These articles call for a government agency to be in place in a country allowing cannabis production. In fact it is exactly what we can see in in the Netherlands and elsewhere for medicinal cannabis. The Dutch government has created a Bureau for Medicinal Cannabis (BMC)[3] that issues the licenses for medicinal cannabis production, deliveries and exportation. Cannabis of medical quality and constant strength, free of bacteria and contamination is produced in four varieties for the BMC by a private company called Bedrocan[4]

Patients can also travel to most of Western Europe with a month’s of their prescribed cannabis using a so called Schengen Declaration signed by their doctor.[5] [6]

But what about cannabis for recreational use? The Single Convention’s Article 4c basically limits policy solutions to medical and scientific purposes. 

Article 4

GENERAL OBLIGATIONS

The parties shall take such legislative and administrative measures as may be necessary:

a) To give effect to and carry out the provisions of this Convention within their own

territories;

b) To co-operate with other States in the execution of the provisions of this Convention;

and

c) Subject to the provisions of this Convention, to limit exclusively to medical and

scientific purposes the production, manufacture, export, import, distribution of, trade in, use

and possession of drugs.

Reservations to the treaty

The Netherlands, have actually made a reservation to the effects of the treaty upon signature to the extent that Dutch criminal law prevails.[7] Dutch criminal law is governed by the expediency principle allowing for refraining from prosecution and hence de facto legal access to cannabis. Therefore in the case of the Netherlands the solution for cannabis production could actually be rather simple.

Just as the Dutch government has tolerated the sale of cannabis products in coffeeshops for over 30 years now, it could tolerate cannabis production and deliveries to these coffeeshops. There is several authors[8] that have called for this option but up to today the political will or courage for this solution was lacking.

Personal use

In a few mostly European countries such as Belgium and Spain a relatively new phenemenon has emerged. So called Cannabis Social Clubs. They are based on the legal exemption of possession for personal use from criminal prosecution.

In Belgium one is allowed to possess three grams of cannabis or one cannabis plant for personal consumption based on a Ministerial Guideline. Based on this guideline an association was created growing cannabis for its members. At first this initiative was prosecuted but has won in court in two instances.[9]

The Spanish cannabis social clubs (CSC) are noncommercial organisations of users who get together to cultivate and distribute enough cannabis to meet their personal needs without having to turn to the black market. They are based on the fact that the consumption of illegal drugs has never been considered a crime under Spanish legislation. Taking advantage of this grey area, private clubs that produce cannabis for non-profit distribution solely to a closed group of adult members have existed since 2002[10]

But how about other or better more structural approaches?

Withdrawal with or without reentering the treaty with a new restriction, the amendment of the treaty and the treaty falling in disuse.

According to the authors of the Beckley Foundation’s report “Moving beyond stalemate” there are four routes which are the most feasible:

1)    Opting for a regulated availability regime which frankly ignores the conventions. A government that follows this route must be prepared to withstand substantial international pressure.

2)    Denouncing the 1961 and 1988 conventions, and re-acceding with reservations with respect to cannabis.

3)    Along with other willing countries, negotiating a new cannabis convention on a supra-national basis.

4)    The treaty falling into disuse.

The authors of Beckley Foundation’s report have paid extensive attention to these options. Our conclusion is that all of them are rather difficult to achieve and don’t seem realistic in the short term apart from the treaty falling into disuse.

The latter becomes realistic especially in the cases of Washington and Colorado State (USA) where voters have recently decided for cannabis legalization, if it were alone because Americans are not generally fond of UN influence on their national policies.

But very little attention is paid to the possibilities of interpretation of the treaty.  

Interpretation of the treaty

The official commentary on the single convention reads the following on the interpretation of article 4c:

Medical

The term "medical purposes" has not been uniformly interpreted by Governments when applying the provisions of the narcotics treaties containing it. Some have prohibited the consumption of narcotic drugs by all addicts excepting only when necessary to alleviate suffering during withdrawal treatment a number of other countries have permitted consumption by persons whose hose addiction proves to be incurable of the minimum quantities required to prevent painful withdrawal symptoms and to enable them to lead a normal life. There have also been a few cases in which all consumption of narcotic drugs by addicts was prohibited, even in the course of withdrawal treatment.

The term "medical purposes" does not necessarily have exactly the same meaning at all times and under all circumstances. Its interpretation must depend on the stage of medical science at the particular time in question; and not only modem medicine, sometimes also referred to as "western Medicine", but also legitimate systems of indigenous medicine such as those which exist in China, India and Pakistan, may be taken into account in this connexion.[11]

Cannabis is often consumed for reasons that could easily be called medicinal but are not strictly medical as on a doctor’s prescription such as for example a good night’s sleep. 

What is medical? Does the word medical in article 4 of the single convention mean: only with a doctor’s prescription? Or does it include a solution where cannabis is sold in drugstores just like other medical products, of which some are rather more toxic than cannabis, such as for example medication against pain. According to our opinion there is absolutely nothing in the Treaty prohibiting such a solution.

Does it allow for cannabis sold to private parties in cannabis dispensaries if they are certified to be suppliers of cannabis for medicinal purposes. Again we don’t see any objection in the Treaty for such a solution.

Can we interpret “medical” as public health? In other words could regulated cannabis production and provision to private parties be allowed if this is the best solution for public health? According to several authorities this seems a bit far-fetched and interferes with the purpose of the treaty except perhaps for the following “Dutch Solution”, already mentioned under reservations.

In our view the toleration (or rather: permission by means of licenses) of cannabis cultivation constitutes a measure in the interest of public health. We acknowledge that this is not the same as a measure with a medical purpose. But we think that the Netherlands should play a leading role regarding this issue by means of the interpretation of the treaty as an instrument of living rights. The public health interest and the medical purposes aimed at individuals - that are to be achieved according to the treaties - do not stand that far apart. This interpretation method is not uncommon in international law at all: The European Human Rights Court applies it too. (Buruma)[12]

Scientific (experiments)

Does the Treaty allow for scientific experiments with cannabis production and deliveries to private parties? According to most authors this is indeed possible but such experiments, although possibly very interesting from a scientific viewpoint, will necessarily be limited in time and cannot provide for a definite solution. In other words, if the experiment’s results are positive, a structural different solution is still required.

An example of such an experiment can be found in the plans of the city of Utrecht in the Netherlands for a city controlled closed cannabis production and supply system. Some sixteen other dutch towns have recently expressed that they want to introduce similar solutions such as Amsterdam, Haarlem, Rotterdam and Tilburg.

This solution could be used alongside the developments in the USA. In other words, a national scientific experiment with a closed cannabis system. 

Conclusion     

We advise to set up a scientific experiment with a closed cannabis system, production and sales, monitored scientifically for public health and criminology aspects.

We are willing to assist scientists with the setup of such a project and provide international scientific cooperation (Dutch, Spanish and US) on this issue.

We have added a supplement with a concrete plan for such a closed system.

It is important however to emphasize that the UN’s INCB simply does not have any sanctions to stop governments to do what is best for their people.

Bibliography

Moving beyond stalemate, Beckley foundation

Reports Asscher Institute I & II

After the war on drugs, transform

Buruma

Official commentary to the single convention

Single convention 1961

Andenas, M. & Spivack, D. (2003). The UN Drug Conventions Regime and Policy Reform. London: British Institute of International and Comparative Law. .

Bewley-Taylor, D. & Trace, M. (2006). The International Narcotics Control Board: Watchdog or Guardian of the Conventions? Beckley Foundation Report No. 7. Beckley, Oxon., UK: Beckley Foundation.

Conforti, B. (1993). International Law and the Role of Domestic Legal Systems. Leiden: Martinus Nijhoff.