European integration and harmonization

by Ybo Buruma

translated from Dutch by Mario Lap & Richard Cowan

1. The Facts. / International crime?

The discussion over a yes or no decision on the regulation or legalization of cannabis cultivation is dominated by the international obligations of The Netheriands. Before discussing them in detail we should first consider that most of these obligations are motivated from on the one hand by the wish to reduce major organized crime, and on the other hand the wish to prevent the disproportionate infringement of the freedom in our country or the interests of other countries.

A recent study indicated that it is a myth that the cannabis trade is completely or mostly controlled by organized crime.1 It is a fact though that especially in the provinces of Brabant and Zuid-Limburg the involvement of criminal organizations is undeniable, as is the fact that part of the Dutch cannabis production is exported.

But it is important to realize that besides “organized crime” there is also a number of smaller domestic cannabis growers serving at the most some friends and relatives, just as there is a number of independent suppliers to the coffee shops and cannabis wholesalers, who, according to the police would still not necessarily be classified as “real” criminals. And even the entrepreneurs running several grow operations at the premises of third parties often behave like regular medium size entrepreneurs and not as gangsters at all.

It is equally important to consider that even the National Police (KLPD) doubt the claim that 80% of the Dutch cannabis production is exported abroad. 2  In 2005, 5630 cannabis grow operations were apprehended in the Netherlands, of which 732 were in the border areas of the provinces of Noord-Brabant and Zeeland, and 864 were in Limburg.3 Estimates of the turnover vary between 30-750 metric tons a year.4 In order to have a clear view of the situation: When we proceed from the average - 340 tons - it would mean that 20 grams of cannabis a year is consumed by all Dutch citizens or around 700 grams a year per cannabis consuming Dutchman. Although this calculation can be questioned, and some cannabis is indeed left over, the estimate is sufficient to deny the thesis that Europe is overflowing with Dutch cannabis. That conclusion is in conformity with the 2003 research of Bovenkerk, showing that in Belgium, France and Great Britain less than 10% of the cannabis busts were related to Dutch cannabis. Large-scale cannabis exportation from the Netherlands according to the KLPD (2005) mostly involved foreign cannabis. Mind you, the question is not whether there are criminal organizations buying cannabis on a large scale intended for exportation. They are there. The question is what part in the exportation by criminal organizations is played by Dutch cannabis production and trade in the coffee shops. That part should not be exaggerated.

Action against organized crime must be undertaken and that is actually what is happening anyway. In the previous years in the border areas several large-scale detection studies have been carried out (also exportation specific) investigating cannabis production by criminal organizations. That is an excellent accomplishment, and the importance of it was proven moreover when a number of assassinations in relation to the organized criminal cannabis trade were committed. The Dutch soft drugs policy is not only an internal affair, because there is Dutch cannabis crossing the borders. And increased mobility and the open borders also simplify the so called kilo trade in the border regions. But whether the trade in the coffee shops or the cannabis production in the Netherlands in general is especially catering the foreign market, remains a act unproven. For some coffee shops (in the border municipalities) and for some grow operations that may be true. But it would be just as incorrect to base the whole Dutch soft drug policy on the case of the border town Terneuzen as on the case of Lelystad. Our thinking about coffee shops or about domestic growers cannot be based on the assumption that -- besides the small scale smuggling of thousands of tourists -- an unknown flow of cannabis filled containers is going to our neighboring countries as a result of our so called tolerance with respect to coffee shops and/or domestic growers.

2.International obligations

The afore mentioned does not mean of course that our international obligations need not to be complied with and that good relations with the most relevant neighboring countries should suffer too much from our national policy on drugs. But there are serious misunderstandings over these very obligations.

For the Ministry of External Affairs an unknown number of anonymous research workers of the TMC Asser Institute in 2005, have produced a report titled Experiments With Tolerating The Cultivation Of Cannabis For The Supply Of Coffee Shops - International Legal And European Legal Aspects. It is a good report, but at vital points certain legal-political choices are made that conflict directly with policy directions chosen in the Netherlands in the past.

This is not the correct moment or place to systematically analyze the arguments of the Asser Institute one by one. Of relevance here is whether the idea of control of cannabis production and sale by means of coffee shops is internationally maintainable. Nevertheless the report mentioned is to be used as a good instrument to judge possible objections against plans for further cannabis regulation.

According to the Asser Institute an experiment with the tolerated cultivation of cannabis for the supply of coffee shops conflicts with the penal provisions which are required according to the Single Convention of 1961 and the Convention against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988 (p. 13). That point would be valid if the Netherlands would proceed to complete legalization. That is not what we are aiming at however. We are attempting control by means of a license system with respect to a very limited number of grow operations. Such control is aimed at the differentiation of markets made in the interest of public health and the effective suppression of organized crime.

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.

The suggested licensing system is accompanied by a tightened up prosecution policy, where prosecution is excluded when - except for other requirements - the cannabis is acquired from licensed grow operations.

Although in our view such regulation is in compliance with the scope of the international treaties, the question can be put forward whether such regulation also complies with the letter or of those treaties. According to the Single Convention each party will take such measures in order to insure that the following behaviors, when committed in conflict with the treaty provisions and committed intentionally, are penalized: cultivation, production, making, avulsion, construction, extraction, possession, offer, offer for sale, distribution, buy, sale, delivery, conciliation, sending, transit, transport, import and export of psychotropic substances. “Use” is not mentioned in this summing up. The United Nations Convention against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988 is aimed at being an addition to the Single Convention and at the improvement of the cooperation between the treaty parties in order to more effectively promote their actions with respect to the different aspects of the illegal trade in narcotic substances, in particular the international aspects.

Now penalization is not the same as “maintaining”. Penalization is what the legislature does. “Maintaining” concerns detection and prosecution as well as prevention and administrative action. In Article 3 of the United Nations Convention against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988 this is recognized. There again - just as in the Single Convention - penalization is demanded. But Article 3 paragraph 6 deals with maintaining. It stipulates that the treaty parties strive to ensure that legal powers, which are granted by their national law appraising the opportunism of prosecution of persons because of violation of regulations made in conformity with Article 3, with a view to the need hold back persons to commit these indictable offenses.

To this article, on which the principle of expedience is based, the Netherlands have made the following reservation:

The government of the Kingdom of the Netherlands accepts what is stipulated in section six (...) of Article 3 only insofar that the resulting obligations comply with the national criminal law and the national criminal policy.

It is important to realize what this means. The Dutch government in 1988 established internationally that it can use its own criminal policy where the effectiveness of detection and law enforcement need not necessarily have to prevail. That has not been contested by any of the treaty parties. The latter can only be understood when we consider that the Dutch criminal policy using the expediency principle was also shaped by the Dutch tolerative policy based on public health considerations. Indeed we do not tolerate because of individual medical considerations such as is taking place in California where 250,000 inhabitants have a medical marijuana prescription! 5 - but because of our public health policy. Our policy is based on the difference between soft and hard drugs. That difference aims at the separation of the drug markets. Relative tolerance with respect to soft drugs would keep people of hard drugs. Here we will not deal with the judgment of the fact if that is a reasonably successful policy, but with the fact whether the Netherlands have taken an accepted international legal route. The Asser Institute has also realized this, but it likes to distance itself from this stance of the Netherlands:

"Indeed the toleration of stock keeping and sales of small quantities of cannabis and cannabis resin by coffeeshops is based on public health considerations. Thus a separation between the market for soft drugs and the market for hard drugs has been achieved, aimed at the prevention of contacts with hard drugs by the users of soft drugs. Nevertheless, it must be observed as well that coffee shops form, within the framework of the current tolerative policy, a commercial sector in which economic activities are performed. Therefore, the conclusion needs to be made that we can not maintain that medical and scientific objectives are served with the commercial cultivation, production, making and trade of cannabis and cannabis resin for the delivery to coffee shops."

It is an intolerable turn of thought that public health arguments would become invalid, because money is also made in that sector. This does not represent a difference of opinion under lawyers. This point of view reveals a legal/political conception that even conflicts with logic.

Now one may say that “regulating” indeed goes further than “tolerating” as was the case at the time of the signing of the 1988 Convention. When the Netherlands made the reservation, the policy was still that the sale of a maximum of 30 grams per transaction (and also a stock of 30 grams) was permitted. Under the influence of French criticism on the Dutch coffee shops, the Government Drug Letter of 1995, introduced an adaptation. From then on the sale by coffeeshops of a maximum of 5 grams per transaction was tolerated. This indeed implied some confidence in coffee shops being able to get their merchandise from small networks of non-criminal domestic growers and thus kept organized crime at a distance. Growing small quantities for personal use (5 plants) and to keep stocks of small quantities (500 grams) by coffee shops, was tolerated.

When we now make a choice for further regulation, we see this as application of the expediency principle, and we do not consider as a hollowing of the penalizations demanded by both Treaties. Of course one can say that by granting licenses to a very limited number of grow operations with respect to those grow operations we indeed go further than under the current conditions. But one must recognize at once that the influence of organized crime can be pushed back in this way - coffee shops can sell only cannabis produced by recognized growers - while in this way also public health can be promoted - by regulating for example the THC content in the licensing conditions.

There is then no hollowing of the penalization, because the Netherlands have already made a distinction between penalization and maintenance by means of the reservation. It is nonsense to consider such as the Asser Institute that the use of the reservation which was made at the end of the eighties of the previous century, introducing a further-reaching tolerative policy after 2005 cannot be reasonably defended as sincere interpreting and observing treaties consistent with respectively Article 31 and 26 of the Vienna Treaty of Treaties. It simply constitutes an ordinary application of the reservation, where the aim of the treaties - the fight of organized crime and promotion of public health - is the objective to be served.

3. European developments

Beside the international treaties there is of course European law which is of importance for our international obligations. Legally it has an even more binding status.

Suppression of illegal drug trafficking is (for example a priority for cooperation in the field of justice and internal affairs art. 29 Treaty European Union).

In that respect the Asser Institute considered the Schengen agreements, as well as the joint action plan 96/750/JBZ and the framework decision 2004/757/JBZ as most relevant. Rightly so it indicated that cultivation of cannabis derivatives is not mentioned in the Schengen agreements. In pursuance of Article 71 paragraph 2 of the Schengen Treaty (hereafter: SUO) the Netherlands have bound themselves to prevent the sale, supply and delivery of narcotics (incl. cannabis). But the third declaration in the final act of the SUO clearly states that treaty parties may refrain from such criminal prosecution as mentioned in Article 71 paragraph 2 SUO. Of course: The Netherlands desired to preserve its own particular enforcement policy. However, deviation of Article 71 creates an obligation of all Schengen Treaty partners to make an effort to reduce the export to the other Treaty partners.

For this reason we - for example in the border areas - cannot neglect the Belgian, German and French interests. Pursuant to the afore mentioned joint action plan the Netherlands has been obliged since 1996 to fight the cross-border trade in and illegal cultivation of cannabis. And quoting the Asser Institute once more: "the framework decision 2004/757/JBZ does not tackle the policy pursued by the Netherlands concerning coffee shops and the possession of small quantities drugs for personal use. But in compliance with Article 4 paragraph 2 framework decision, Member States are obliged to set maximum penalties for the cultivation of cannabis plants, and other drug related drug crimes mentioned in Article 2 paragraph 1, a, b and e, of at least 5 up to 10 years of prison, if this indictable offense is regarded to large quantities of cannabis. From this the Asser Institute concludes - without regarding the essential difference between penalization and maintaining always defended by the Netherlands- that large scale cultivation of cannabis can be considered in conflict with that framework decision. That really is an incomprehensible error. 6

According to the EU drug strategy 2005-2012 appropriate attention to the subsidiarity principle is required: the Union should not regulate what can be left to the Member States. But it is believed also that a common credible drug fighting policy of the EU is only possible if the national prosecution policies of all Member States are kept true with each other. Blom indicates that this is an important passage regarding the tolerative policy with respect to coffeeshops.7 Nowhere in the EU-drugs action plan, nor elsewhere, is there a concrete proposal presented that leads to consistency in prosecution practices.

With these last words we do not want to give the impression that Europe loves the direction the Netherlands have taken. Perhaps in this especially our straightforward approach is most relevant. Belgium, Germany France and the UK conduct policies similar to the Dutch policy with respect to possession: illegal, but in the case of quantities between 5 and 30 grams there is no prosecution. But coffeesbops are indeed uniquely Dutch, and although the number of hemp plantations may increase in Belgium and Germany - compared to the Dutch situation this is insignificant.

4 Conclusion

It is not true that the Dutch coffee shops and the Dutch cannabis grow operations can be held responsible for cannabis use in Europe. Of course there are - certainly in the border regions - places in the Netherlands from which the European market is served. The Netherlands is obliged by the Schengen execution treaty to continue to prevent exportation to other European states. The Netherlands is also bound by international treaties and European instruments to keep the penalization of the production and the trade in drugs illegal and to continue to act against the illegal drug trade, certainly when this activity transcends borders and/or committed by criminal organizations.

But the Netherlands has been firm and consistent during the past 40 years in expressing the desire to keep latitude not to prosecute in the interest of public health.

That latitude is recognized and uncontested concerning the international treaties and also - although not always happily - in the European fora. When the Netherlands holds to the line that crime suppression and public health are served as effectively as possible when the production and supply of cannabis for strictly licensed coffee shops is regulated, then in our judgment this position is also internationally justifiable. Hereby we reject the opinion that an amendment to the law which aims at regulating the soft drugs chain, or facilitates an experiment for that purpose, is impossible within the existing legal framework of international and European legal obligations.8, However, we do recognize the considerable weight of sincere and visible attention to the impact for the interests of our European partners. When one is a front runner, one carries responsibility for the interests of the followers.

1 Tim Boekhout van Solinge and Ramon Passier, the treatment of cannabis production in the Netherlands, Utrecht 2009.

2 Boekhout van Solinge and Passier (2009), p. 29 o.v.v. KLPD (2005) the cannabis market in the Netherlands. Estimate of supply, production, consumption and export.

3 Toine Spapens, organized crime and criminal cooperation in the Dutch border areas, Intersentia 2008. Thereby is with clear to what extent kwekerijen kwekerijen burned down of less than 5 plants and were also counted; it is certain that in Limburg-Noord were closed down a couple complete large.

4 A. of of the Heijden, the cannabis market quoted in the Netherlands, KLPD 2006, in Spapens (2008), p. 180

5 Boekhout van Solinge and Passier, p. 466 Art. 2 framework decision: Each Member State shall take the necessary measures to ensure that the following conduct without right are punishable. And it is underlined in consideration 9 that it only concerns legislative measures and sees on the prosecution policy.

7 about this T. Blom, coffee shops, gedoogbeleid and Europe, judicial explorations, 2006/1.

8 Kamerstukken 112005-2006, 24, 077, no. 175.

professor of criminal law and criminology