Abstract
Several EU states have shown initiatives towards a more lenient approach to the regulation of cannabis cultivation and trade for recreational use. One possibility that is being investigated is whether a national regulatory system for controlled trade of recreational cannabis can be developed in accordance of the EU Framework Decision 2004/757/jha. The ‘without right’ -clause in Article 2(1) of this decision, from a linguistic point of view, does seem to allow the introduction of such a licensing system. In fact, such a system would not cross the system or the purpose of the Framework Decision, if such licensing system does not result in cross-border effects or the hindering of transnational cooperation in combatting cross-border drug trafficking. However, this possibility is only of theoretical nature considering the clear and strict obligations ensuing from the UN narcotic drugs conventions. In order to regulate recreational cannabis within the boundaries of public international law, states can: (1) denounce the UN narcotic drugs conventions; (2) deviate from the obligations of the UN conventions on the basis of positive human rights obligations; (3) create an inter se agreement between like-minded states that deviates from the UN conventions; and (4) denounce the UN drugs conventions and re-access subsequently with a reservation allowing for regulation of recreational cannabis. We argue that these options can have a combined strengthening effect and indeed present a legally sound and politically viable opportunity to regulate recreational cannabis without denouncing the whole UN drug control system.
1 Introduction1
Legal regulation of cannabis cultivation and trade for recreational use is generating increased attention in Europe. Several EU Member States have shown initiatives towards a more lenient approach to such regulation. The Netherlands for example, has introduced an Act on a controlled cannabis supply chain experiment that is intended to show whether the current policy of tolerance towards the sale of cannabis, but not towards its production and supply to the so-called coffeeshops, can be revisited.2 Malta has introduced an Authority on the Responsible Use of Cannabis Act on 18 December 2021.3 On the basis of this Act adults are allowed to possess a certain amount of cannabis and cultivate a small number of cannabis plants for personal use. In addition, the Act allows under certain conditions non-profit organizations to cultivate cannabis for distribution among its members.4 In Luxembourg, an Act is being designed which will allow for limited cultivation in private residences of cannabis for personal use and the sale of seeds to that end.5 Even France, where a strictly prohibitive approach towards cannabis has dominated to date, shows a more lenient perception towards it. A 2021 report of a parliamentary multidisciplinary commission based on a broad survey (253,194 respondents) shows that legalization of recreational cannabis use is no longer considered a taboo in France. This report moreover advances a national debate on how to go about regulating cannabis while protecting the youth.6
Lastly, an interesting development that has prompted the exploration in this article is taking place in Germany. The new German government has agreed to develop a regulatory system for controlled cannabis trade for adult recreational use,7 which at least to some extent seems to be based on an earlier draft ‘Entwurf eines Cannabiskontrollgesetzes’ (CannKG) submitted by the current leading party Bündnis 90/Die Grünen.8 One of the arguments presented on the question of compatibility of the draft CannKG with EU law is that the EU Framework Decision 2004/757/jha on illicit drug trafficking,9 unlike the UN narcotic drugs conventions,10 does not exclusively limit the production and sale of drugs to medical and scientific purposes.11 According to the explanatory report on the draft CannKG, this “without right” clause provides for exception from criminalization of drug related conduct when it is authorized by the state via a regulatory framework.12 In this article we explore this issue further.13
Article 2(1) of Framework Decision 2004/757/jha on illicit drug trafficking stipulates which intentional conduct in the field of trafficking in drugs and precursors must be made punishable by the EU Member States. The activities referred to in the provision include the production, manufacture, extraction, preparation, offering, offering for sale, distribution, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation or exportation of drugs. Furthermore, the activities include the possession or purchase of drugs with a view to conducting one of the aforementioned activities, as well as the cultivation of inter alia cannabis plant. Article 2 of the Framework Decision contains two exceptions to the obligation to criminalize the above mentioned activities. One of the exceptions is included in the second paragraph: the conduct listed in the first paragraph is not covered by the Framework Decision “when it is committed by its perpetrators exclusively for their own personal consumption as defined by national law”.14 Here, however, we are more concerned with the exception which is apparent from the opening sentence of the first paragraph. According to its English text, each Member State shall take the necessary measures to ensure that the referred to intentional conduct is punishable “when committed without right”. In the Dutch language version of the Framework Decision this is “wanneer daarvoor geen rechtvaardigingsgrond aanwezig is”, in the French “lorsqu’ils ne peuvent être légitimés”, in the German “wenn sie ohne entsprechende Berechtigung vorgenommen wurden”, in the Spanish “cuando se cometan contrariamente a Derecho” and in the Swedish “när de begås […] orättmätigt”. These language versions seem to differ substantially in their linguistic meaning.
The question arises to what extent Member States are at liberty to interpret the Article 2(1) exception as they see fit and whether they consequently have the possibility to refrain from criminalizing the intentional conduct to which Article 2(1) of the Framework Decision refers. More specifically, the issue is whether a Member State can allow, for example, cultivation, distribution, and sale of cannabis for the recreational user market that takes place in accordance with a licensing system set up by that state. If that were to be the case, it is furthermore important to ascertain whether the clause merely requires that the activities be permitted under national law or whether it must also be permitted under international law. To answer these questions, we will analyse the rational and meaning of “without right” clause in the context of the EU law in paragraph 2. In paragraph 3 we then pay attention to the intersection of the relevant issue with the UN drug control system. In paragraph 4 we briefly conclude. What follows is a strictly legal analysis of the text and the purpose of the instruments that are relevant to explain the clause. We do not intent to make predictions on how the Court of Justice EU or other EU institutions would interpret the clause. Neither do we intent to suggest how states should go about the precise application of the “without right” clause or the avenues we present in paragraph 3 to address the obligations arising from the UN drugs conventions.
2 Rationale and Meaning of the ‘Without Right’ Clause
From the outset it is important to underline that the Court of Justice EU (cjeu) has not addressed the interpretation of the “without right” clause to date. From the existing case law concerning narcotic drugs it becomes clear that the cjeu considers illegal drugs, i.e. drugs that fall outside of the medical and scientific field that is strictly controlled by national authorities, as products that are by their very nature, prohibited in the EU and thus do not fall within the definition of goods and services under the EU law.15 This finding is based on the fact that narcotic drugs are criminalised under national laws of all member states and that these states and even the EU itself are bound by international conventions prohibiting cannabis.16 The fact that some states, such as The Netherlands, pursue a more lenient approach to cultivation, sale and possession of cannabis does not alter this finding. Moreover, as became clear from the case of Josemans, the Court leaves states leeway to restrict the free movement of services where the national measure is justified on the basis of the necessity to maintain order in society in the interest of combatting drug tourism.17 To date, the cjeu has neither made statements on the (compatibility of the) national drugs policy of member states in light of the EU law, nor has interpreted the scope of obligations with regard to cannabis deriving from the international conventions regulating narcotic drugs.18
The following investigation into the rationale and the meaning of the clause ‘without right’ in the Framework Decision 204/757/jha proceeds on the basis of the rules of interpretation followed by the cjeu. These rules take the wording of the provision as a point of departure, while also taking into account the context of the provision and the purpose of the legislation (i.e. literal, contextual and teleological interpretation).19 In order to ensure autonomous and uniform interpretation of the terms of a provision of the EU law, the cjeu has clarified that secondary EU rules should be interpretated, as far as possible, in conformity with the primary law generally and the Charter of Fundamental Rights of the European Union more specifically.20 While historical interpretation seems not to have any straightforward relevance to the interpretation of provisions in the case law of the cjeu, the Court has in fact consulted preparatory works where convenient for the interpretation of specific provisions.21
2.1 What the Clause does not Mean
Although Framework Decision 2004/757/jha on illicit drug trafficking does not expressly define or explain the meaning of the clause, it is plausible that the clause does not primarily serve to exclude criminal liability for the conduct of a person aimed at their personal drug consumption. That such conduct falls outside the scope of the Framework Decision already follows explicitly from Article 2(2). It would systematically make little sense to interpret the clause in the first paragraph in such a way that it would make the exception from the second paragraph superfluous. Furthermore, the limitation of the exception in the second paragraph to conduct aimed at personal use seems to imply that the “without right” clause in the first paragraph cannot extend to a general exclusion of criminal liability for conduct not aimed at personal use. Otherwise, the personal use restriction in the second paragraph would no longer have any added value. Such an all-embracing exclusion based on the clause would, moreover, be difficult to reconcile with the ‘object and purpose’ of the Framework Decision, which includes the “need for legislative action to tackle illicit drug trafficking”, since that “poses a threat to health, safety and the quality of life of citizens of the European Union, and to the legal economy, stability and security of the Member States”.22 It thus seems that the clause may not be used as a so-called ‘claw-back clause’ with which the obligation to criminalize drug related acts could be completely undermined.
2.2 Wording of the Clause and Preparatory History
No doubt, the “without right” clause in Article 2(1) of Framework Decision 2004/757/jha leaves the Member States the possibility to apply justification (and excuse) defences under national criminal law as well as the exception of ‘medical and scientific purposes’ from the 1961 UN Single Convention on Narcotic Drugs, provided of course that such application does not contravene the obligation to interpret and implement the Convention in good faith.23 More difficult to determine, however, is what the rationale and further meaning of the clause is, other than to make clear that the obligation on Member States to criminalize drug related intentional conduct only applies when that conduct is “committed without right”.
The Explanatory Memorandum to the Framework Decision does not clarify the meaning of the clause “without right”. The reason for this is that the clause was not enclosed in the proposal for the Framework Decision, to which the memorandum is attached. Under Article 2 of the Proposal, Member States had the obligation to “take the necessary measures to make illicit drug trafficking a criminal offence”. Article 1(1) of the Proposal defined ‘illicit drug trafficking’ as a drug related act “without authorisation” (in other language versions: Dutch “zonder machtiging”, French “sans autorisation”, German “ohne Genehmigung”, Spanish “sin autorización”, and Swedish “att olovligen”). The Explanatory Memorandum does not explain when and for which purposes authorization could have been given. Nor does this follow from the definition of trafficking used in the 1988 UN Convention Against Illicit Traffic,24 to which definition the Explanatory Memorandum refers.25 Even if this had been different, the question would remain whether the ‘without authorisation’ clause in the Proposal and the ‘without right’ clause in the final Framework Decision are meant to signify the same.
That this is the case, is far from obvious, considering the significant textual differences between the two clauses. In almost all the language versions mentioned above, the clause in Framework Decision 2004/757/jha seems to be broader than the clause in the Proposal. It follows from, the English version of the clause in the Framework Decision, for example, that criminal liability may be excluded for situations in which there is a ‘right’ to commit the act. Normally, if one has ‘authorisation’ for an act, one has a ‘right’ to perform that act. However, having a ‘right’ can generally be based on much more than only authorization. A right can also derive from, for example, a legal statute or a human rights provision. Linguistically, the wording of the “without right”-clause is thus rather broad. Similar reasoning applies to the Dutch, French, German and Spanish language versions. It does perhaps less clearly pertain to the Swedish language version, but in that case the wording of the clause in the Proposal (olovligen: unauthorized, illegal, unlawful) can have a meaning that is already close to the clause in the Framework decisions (orättmätigt: unlawful). From a linguistic point of view (i.e. grammatical interpretation), it can be concluded that the ‘without right’ clause in the Framework Decision offers broader possibilities to exclude criminal liability for drug related acts than the Proposal with its emphasis on authorization did.
As is apparent from the above, the discussion of the Proposal led to changes in the setup of the Articles in the Framework Decision. The ‘without authorisation’ clause in the definition of “illicit drug trafficking” in Article 1(1) was transferred to the criminalization obligation in Article 2, but with a different formulation: “without authorisation” was changed into the broader wording “when committed unlawfully”.26 The clause remained a point of discussion. The Commission, which favoured stricter definitions than ultimately could be accepted by the Council,27 proposed to replace “unlawfully” by the narrower “without authorisation” again.28 However, in order to reconcile the diverging points of view on the use of the words “unlawful” or “without authorisation”, it was later decided to change the clause into “without right” in conformity with the wording of Article 4 of the draft Council Framework Decision on combatting the sexual exploitation of children and child pornography. France and The Netherlands maintained their reservations on this wording during further discussions.29
It seems that the wording “without right” was considered to be a compromise between the expressions “without authorisation” and “unlawfully”.30 Indeed, not acting “without right” may imply a somewhat narrower exception than the exception of not acting “unlawfully”. Whereas the latter seems to be of a more general nature (the law does not forbid a certain action), the requirement that one does not act without right seems to imply that one must act on the basis of a specific positive legal right (an express right for certain conduct under specific conditions). In turn, as explained above, the exception of having a “right” is linguistically broader than the exception of having “authorisation”. ‘Without right’ is also fairly broad as such, although not limitless. That someone must positively have a “right” to fall within the clause seems to suggest that general legalization or decriminalization of certain drug related conduct would not be covered by the clause.31 It remains unclear, however, to what extent the use of the word “right” is meant to be broader by the drafters of Article 2 of Framework Decision 2004/757/jha than the word “authorisation”, and why. The purpose of the alteration of the wording may just be to guarantee that the clause – besides authorization for drug trade for ‘medical and scientific purposes’ – leaves room for the application of justification defences, even if these do not involve authorisation, such as the defence of necessity.
We have not been able to find any clear indication in the preparatory documents concerning Framework Decision 2004/757/jha that the clause was understood to provide wider possibilities to exclude criminal liability for drug related conduct.32 In fact, the difficult and long discussions about the preferred scope of the Framework Decision point to the opposite. If the clause had been considered as a wide possibility for Member States to make exceptions to the obligation to criminalize, the Netherlands would have had much less reason to oppose the obligations in order to preserve its so-called (regulated) coffeeshop system.33 It can be concluded that the text of the “without right” clause linguistically implies significantly wider possibilities to exclude drug related conduct from criminal liability than the Member States may have actually envisaged with the clause.
2.3 Other Instruments with a “Without Right” Clause
“provide a defence in respect of conduct relating to pornographic material having for example, a medical, scientific or similar purpose. It also allows activities carried out under domestic legal powers, such as the legitimate possession of child pornography by the authorities in order to conduct criminal proceedings or to prevent, detect or investigate crime. Furthermore, it does not exclude legal defences or similar relevant principles that relieve a person of responsibility under specific circumstances, for example where telephone or Internet hotlines carry out activities to report those cases.”
Directive 2013/40/EU on attacks against information systems holds the obligation to criminalize access “without right” to information systems.35 According to Article 2 of Directive 2013/40/EU, “without right” means “conduct referred to in this Directive, including access, interference, or interception, which is not authorised by the owner or by another right holder of the system or of part of it, or not permitted under national law.”
To ascertain what can be concluded from this, the differences between language versions again deserve some attention. Whereas the wording of the “without right” clause is identical in the English language versions of the three instruments (drugs, child pornography, information systems), this is remarkably enough not the case in the other language versions we refer to in this article. They almost all deviate from the wording of the clause in Framework Decision 2004/757/jha. In Directive 2011/93/EU on child pornography and Directive 2013/40/EU on information systems respectively, the wording in Dutch is “wederrechtelijk”/“onrechtmatig” (unlawful/illegal), while the Framework Decision 2004/757/jha refers to “geen rechtvaardigingsgrond” (no ground for (a) justification (defence)). In French, both Directives refer to “sans droit”/“sans droit” (without right), while the Framework Decision 2004/757/jha contains “ne peuvent être légitimés” (cannot be legitimized). The German version of the Directives contains “unrechtmäßig”/“unbefugt” (unlawful/unauthorized) and the Framework Decision 2004/757/jha “ohne entsprechende Berechtigung” (without appropriate authorization). In Spanish the Directives refer to “de forma ilícita”/“sin autorización” respectively (illegally/without authorization), while the Framework Decision 2004/757/jha says “contrariamente a Derecho” (contrary to law). Last, the Swedish versions of the Directives contain “olovligen”/“orättmätigt” (unauthorized, illegal/unlawful and the Framework Decision 2004/757/jha, as mentioned, contains “orättmätigt”).36 The wording is thus highly inconsistent between language versions and even within languages. The wording varies between something like justification (strictest terminology) and unlawful (widest terminology).
The Dutch language version of the clause in Framework Decision 2004/757/jha seems to be the most specific and thus narrowest. It uses the term “rechtvaardigingsgrond”, which could in its most narrow sense be translated as “ground for a justification defence”. However, under both the Directive on child pornography and the Directive on information systems, the “without right” clause includes, but is clearly not limited to, general criminal law justification defences such as necessity or acting under statutory duty or a superior order. In case of Directive 2013/40/EU on attacks against information systems, the “right” that excludes the obligation to criminalize can follow from either special authorization (by, e.g., a public or private owner) or from permission of the conduct under national law. Ultimately, the national legislator can thus decide if certain conduct will qualify as conduct that falls within the obligation or not. Although such a possibility is certainly not expressly excluded in Directive 2011/93/EU on child pornography, it seems that a somewhat narrower approach is intended in this instrument than in the Directive 2013/40/EU. The above cited point 17 of the Preamble refers specifically to several examples – in short: medical, scientific or similar purposes, the interest of the criminal justice system, and legal defences – and herewith conveys that only specific, consequential interests can constitute a right in exception of the obligation to criminalize.
Comparison of the wording of the “without right” clauses under the three instruments illustrates that the meaning of the clause is not fixed but depends on the context and nature of the crime the particular instrument aims to counter. Moreover, the latitude for Member States to give meaning to the “without right” clause is not clearly demarcated. The inconsistent wording, which also varies in scope, of the “without right” clause between different language versions of an instrument and even between the instruments in the same language blurs the exact linguistic meaning of the clause. Arguably, this leaves states more room to interpret the clause as they deem appropriate. Moreover, whereas the Directives on information systems and child pornography at least offer some clarification on when the clause applies, such explanation is lacking altogether for the clause in the Framework Decision on drugs. In that respect it could be argued that of the three instruments, Framework Decision 2004/757/jha gives Member States the most latitude to interpret and apply the clause as they see fit.
2.4 The Purpose of Framework Decision 2004/757/jha
As it is not clear what – in the context of Framework Decision 2004/757/jha – is to be understood exactly by the “without right” clause and what the rationale is for including it, the question arises what it might mean in the light of the purpose of the Framework Decision. According to the title of the Framework Decision, it is aimed at “laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking”. This is also recognized in point 3 of the Preamble. The primary and direct purpose of the instrument is thus the establishment of minimum rules that must be implemented by the Member States.
However, the harmonization of criminal offences and penalties the instrument purports, is ultimately just a means to an end. Point 3 of the Preamble states the more indirect objective of the adoption of minimum rules, namely that it “will allow a common approach at European Union level to the fight against such trafficking”. Behind all this is the view that there is the “need for legislative action to tackle illicit drug trafficking” since that “poses a threat to health, safety and the quality of life of citizens of the European Union, and to the legal economy, stability and security of the Member States” (point 1 and 2 of the Preamble). By virtue of the principle of subsidiarity, this “action should focus on the most serious types of drug offence” (point 4 of the Preamble). In addition to this, the official Statement by the Council at the time of the adoption of Framework Decision 2004/757/jha, the “Council condemns all forms of drug trafficking”, “underlines the importance of taking a strong stance against drug trafficking at all levels and emphasises the need for a trans-national and coherent approach in combating drug trafficking.” In this connection, in a special Declaration to the Framework Decision, the Council “also stresses the interrelation existing between legislation of all Member States and stresses the importance of dissuading the phenomenon of drug tourism.”37
It seems that a literal interpretation of the “without right” clause does not necessarily interfere with the primary purpose of the Framework Decision. Considering that the instrument concerns “legislative action”, this can be the case if the provisions on illicit drug trafficking in the Member States are in conformity with the constituent elements of criminal acts and penalties as required. The primary purpose of harmonizing criminal offences and penalties would then be achieved. It could then be argued that Member States can authorize the cultivation and trade of cannabis for recreational consumption that takes place in accordance with a national licensing system set up by that state, provided that drug related activities outside the system can be prosecuted on the basis of criminal offences that fulfil the requirements of the Framework Decision. The cannabis activities within the licensing system would be based on the “right” that follows from the authorization, whereas drug trafficking that is not authorized by the Member State would still be “without right” and consequently fall under the criminal acts and penalties of the Framework Decision.
The question then is how a national licensing system for recreational drugs would relate to the indirect goals of the Framework Decision. Such a system may not undermine a transnational, coherent and common approach in the European Union in fighting against drug trafficking and may not harm the efforts to discourage drug tourism. Much depends on how these indirect goals are interpreted. Does the intended approach imply that Member States cannot introduce a licensing system, as that would mean a variation of approaches between states? If this were the case, meeting the goals was already unfeasible at the time the instrument was adopted, with the very different approaches in for example the Netherlands (quite lenient) and Sweden (very strict). Or does a transnational, coherent and common approach demand harmonization of national criminal laws and in addition also meaningful cooperation between the Member States on the basis of these harmonized laws in cross-border illegal drug trafficking? Whereas this interpretation of the purpose of the Framework Decision seems fitted, one could still argue that it does not preclude the introduction by a state of a national licensing system for recreational drugs on the basis of the “without right” clause. This would at least apply as long as that state can ensure that such a system would not have cross-border effects and would not hinder transnational cooperation in combatting cross-border drug trafficking and not harm the efforts to discourage drug tourism. Whether a state in fact is able to ensure that in practice concerns a different, more empirical question which we cannot address in this article. The following section considers the relevance of the broader EU law regulating illicit drugs trafficking for interpreting the “without right” clause.
2.5 Broader EU Law Context: the Relevance of the Schengen Acquis and Former Joint Action 96/750/jha on Illegal Drug Trafficking
Framework Decision 2004/757/jha on illicit drug trafficking does not expressly mention either the Schengen Acquis (i.e. the Schengen Agreement and the Schengen Implementation Agreement)38 and the Joint Action 96/750/jha of 17 December 1996 concerning the approximation of the laws and practices of the Member States of the European Union to combat drug addiction and to prevent and combat illegal drug trafficking, which was repealed in 2016.39 However, considering the broader context of the EU law, the relevance of the Schengen Acquis and the former Joint Action for the interpretation of the “without right” clause in Article 2(1) of Framework Decision 2004/757/jha should be investigated. The Schengen Acquis is to be considered part of Community law due to the integration of the acquis into the framework of the European Union.40 As far as the Joint Action is concerned, the Framework Decision according to the Explanatory Memorandum thereto is meant to be “entirely in keeping with the spirit of the Joint Action”.41 Moreover, Joint Action 96/750/jha was not repealed by the European legislator because it had changed its views about its content, but because the Joint Action simply became obsolete after the entry into force of several other instruments, including Framework Decision 2004/757/jha.42 Arguably, the Joint Action 96/750/jha ‘in its spirit’ continues to be of some relevance for the EU drugs regulatory system, which now formally is largely embodied by the Schengen Acquis and Framework Decision 2004/757/jha. Since the Framework Decision is only a part of that EU system, the purpose of that system as a whole remains relevant for the interpretation of the provisions in the Framework Decision.
The Schengen Agreement created a wide and general framework with respect to narcotic drugs as it was foreseen that the abolition of border checks would lead to an intensification of illicit drugs trafficking across borders. According to Article 8 of the Schengen Agreement the member states undertook to “combat vigorously illicit drug trafficking on their territories and to coordinate their action effectively in this area”. The states involved accepted this commitment in order to be able to relax the border checks and due to the major differences between the laws of the member states. In Article 71(1) of the Schengen Implementation Agreement, the member states “undertake as regards the direct or indirect sale of narcotic drugs and psychotropic substances of whatever type, including cannabis, and the possession of such products and substances for sale or export, to adopt in accordance with the existing United Nations Conventions, all necessary measures to prevent and punish the illicit trafficking in narcotic drugs and psychotropic substances.” Article 71(2) of the Schengen Implementation Agreement further specifies that states “undertake to prevent and punish by administrative and penal measures the illegal export of narcotic drugs and psychotropic substances, including cannabis, as well as the sale, supply and handing over of such products and substances […].”
“In so far as a Contracting Party departs from the principle referred to in Article 71(2) in connection with its national policy on the prevention and treatment of addiction to narcotic drugs and psychotropic substances, all Contracting Parties shall adopt the necessary administrative measures and penal measures to prevent and punish the illicit import and export of such products and substances, particularly towards the territories of the other Contracting Parties.”44
A state is thus bound to adopt all necessary administrative and penal measures to combat the illicit import and export of cannabis, notwithstanding its national policy for the ‘prevention and treatment’ of addiction to narcotic drugs for which the Joint Declaration leaves leeway to states. Could a national licensing system for recreational cannabis fall withing this exception? Clearly, such a licensing system does not imply treatment of addiction in a medical or therapeutic sense directly. However, if certain regulation of drugs, through policies of tolerance and non-prosecution or licensing for example, could help prevent addiction to these drugs, one could argue that such regulation would indeed fall within the scope of the exception in the Joint Declaration. Importantly, the Joint Declaration only permits an exception to the obligations in Article 71(2) Schengen Implementation Agreement ‘in so far as’ a state indeed implements a ‘national policy on the prevention and treatment of addiction’ to drugs. In that case, a state must adopt the necessary measures to prevent and punish the illicit import and export of drugs. Arguably this means that a state must prevent as much as possible the consequences of that policy that are harmful to other states.45 Following this line of thought, a state would act in agreement with the Joint Declaration if (and only if) that state implements a licensing system that is based on the rational of prevention and treatment of addition and that state takes all reasonably possible measures to prevent cannabis that is regulated through a national licensing system to cross over the borders to other state parties.
It can thus be concluded that an interpretation of the “without right” clause in Article 2(1) of Framework Decision 2004/757/jha that would allow for the introduction of a national licensing system for recreational cannabis would not be contrary to the Schengen Acquis in as far as that licensing system also aims to contribute to the prevention of drugs addiction and provided that the state at the same time takes the necessary administrative and penal measures to prevent and punish cross-border illegal drug trafficking. Instead of being contrary to the rationale and the purpose of the Schengen Acquis, such interpretation of the the “without right” clause in the Framework Decision could arguably be regarded as a further acknowledgment of that which already follows from the Schengen Acquis.
The above is indirectly also relevant as regards former Joint Action 96/750/jha. The Joint Action expressed the need for an integrated approach in the fight against drugs (addiction and trafficking) and underscored member states commitment to fulfil their obligations under the United National narcotic drugs conventions (of 1961, 1971 and 1988) “strictly and effectively” (Article 7 of the Joint Action). This instrument thus stresses and confirms the UN framework for combatting illegal drugs, while leaving states leeway to maintain or introduce in its territory – with due regard for its international commitments – any additional measure it deems appropriate to fight drug addiction and to prevent and combat illicit drug trafficking.46 Arguably, there seems no reason to assume that the Joint Action invalidates the Joint Declaration of the Member States about the exception to Article 71(2) of the Schengen Implementation Agreement. If that is indeed the case – and we assert that it is – then by extension the same must apply to the interpretation of the “without right” clause in Article 2(1) of Framework Decision 2004/757/jha. There is, nevertheless, also another point to consider.
Both the Preamble and Article 7 of Joint Action 96/750/jha explicitly refer to the UN narcotic drug conventions. Article 7 stipulates: “Member States shall ensure that their obligations under the United Nations Conventions on narcotic drugs and psychotropic substances of 1961, 1971, and 1988 are applied strictly and effectively.” As a result, as we have concluded before, it would violate the obligations of Member States to ‘take the most appropriate steps’ to combat cannabis cultivation if they were to permit such cultivation by for example, legalizing or regulating it in any way or by tolerating it as a matter of policy. Former Joint Action 96/750/jha was an obstacle to that.47 It was, however, not directly so by itself, but merely via the obligations under the UN drug control system. The obligations that states had under the former Joint Action as regards drug trafficking concern “illegal” and “illicit” drug trafficking. In contrast to the UN narcotic drug conventions, former Joint Action 96/750/jha does not offer a substantive definition of when drug trafficking is to be regarded as illegal. Strictly viewed within the boundaries of the Joint Action itself, cultivation, distribution, and sale of cannabis for the recreational user market that takes place in accordance with a licensing system set up by the state could, therefore, be regarded as legal. After all, such trafficking would be legal under national law, while the former Joint Action as such would not require it to be qualified as “illegal” or “illicit” drugs trafficking, as a result of which the obligations in the former Joint Action would not have applied to the cannabis related activities within the licensing system.
Therefore, ‘the spirit’ of Joint Action 96/750/jha as such does not constitute an obstacle to regulating cannabis for recreational use on the basis of the “without right” clause, but only the UN narcotic drug conventions to which it refers do. To put it differently: if the UN narcotic drug conventions no longer formed a categorical impediment for the introduction of a licensing system for recreational cannabis, then in principle Joint Action 96/750/jha would not have done so either.
In light of the above exploration into the rationale and purpose of the Schengen Acquis and Joint Action 96/750/jha, it can be concluded that an interpretation of the “without right” clause in Article 2(1) of Framework Decision 2004/757/jha that would allow for the introduction of a strict national licensing system for recreational cannabis, would not necessarily be in violation of the Schengen Acquis and the Joint Action.
2.6 National or International Context
Whereas the “personal use” clause in Article 2(2) of Framework Decision 2004/757/jha only applies in as far as own personal consumption falls within the definition thereof “by national law”, the meaning of the “without right” clause in Article 2(1) is not made dependent on either national or international law. It therefore appears that a “right” that could exclude criminal liability can follow from both national and international law. This means, for example, that an international human right could potentially be acknowledged as a right under the clause. A different matter is whether a right can only be validly recognized in conformity with both national and international law. Particularly the latter is of concern here.
Framework Decision 2004/757/jha builds on – among other instruments – the UN narcotic drugs conventions to a limited extent. Only for the definition of drugs and of precursors, Article 1 of the Framework Decision refers back to the 1961 UN Single Convention, the 1971 UN Convention on Psychotropic Substances,48 and the 1988 UN Convention Against Illicit Traffic. Other than that, the Framework Decision makes no mention of the UN narcotic drug conventions, nor does the Explanatory Memorandum. In the Preamble to the Framework Decision, the UN narcotic drug control system is not mentioned at all. So neither the Preamble or the Articles of the Framework Decision nor the Explanatory Memorandum expressly or implicitly suggest that the UN narcotic drug conventions must be considered part of the Framework Decision. The Framework Decision does not by itself require that the “without right” clause must be applied in conformity with obligations under the UN narcotic drug control system.
It should also be taken into consideration that the European Union itself is a party to the UN Convention Against Illicit Traffic, but only with respect to the areas within the competence of the Union.49 It is not easy to decisively determine to what extent that competence could stretch out over national drugs legislation and policy. According to the Declaration that is annexed to the Council Decision to become a party to the Illicit Traffic Convention, the European Union (then: the ecc) is “competent for questions of commercial policy relating to the substances frequently used in the illicit manufacture of narcotic drugs and psychotropic substances, questions which are dealt with in Article 12 of the Convention.” Article 12 refers to Tables I and ii, which list the relevant substances.50 Cannabis and cannabinoids do not fall within the substances that are listed in the Tables. Meanwhile, “subject to continuous development”, the Declaration also reserves the right “to make further declarations in accordance with Article 27 (2) of the Convention”. Up till now, such declarations have not been made. We assume – considering, for example, the principle of subsidiarity and the limited competence in criminal matters51 – that it would be legally quite difficult for the Union to claim in the future that a national licensing system for recreational cannabis that meets certain requirements (e.g., no cross-border affects, criminal law legislation in conformity with harmonization obligations) would fall within the scope of the competence of the European Union with respect to the Illicit Traffic Convention. Even so, the following still applies.
Each of the EU Member States is also a party to the UN narcotic drugs conventions. As a result, even though Framework Decision 2004/757/jha does not require that Member States act in conformity with these conventions when applying the “without right” clause, the obligation to do so still arises from the UN narcotic drug conventions themselves. This means that states can only recognize a “right” under the clause if this does not violate their obligations under international law. On account of the UN narcotic drugs conventions – particularly Article 4 of the 1961 UN Single Convention – authorization is only possible for “medical and scientific purposes”.52 Without such authorization, one acts in principle53 “without right”, according to the UN narcotic drug control system. Of course, this would no longer apply if, for example, an EU Member State would leave (denounce) the UN control system or at least the Single Convention and the Illicit Traffic Convention completely, or would, as we discuss further below in section 3, validly derogate from relevant articles in these conventions by means of an inter se agreement or by means of a reservation (including a kind of “inter se agreement light” through a group action reservation).
2.7 Conclusion on the ‘Without Right’ Clause
From a linguistic point of view (i.e. grammatical interpretation), the “without right” clause in Article 2(1) of Framework Decision 2004/757/jha on illicit drug trafficking would allow for the introduction by a Member State of a national licensing system for cultivation, distribution, and sale of cannabis for recreational consumption. Authorization under the licensing system can as such very well qualify as a “right” for the cultivator, distributor or salesperson to perform the activity. Authorization would thus mean that the activity does not take place “without right” in the sense of Article 2(1) of the Framework Decision.
Provided that several conditions are met, such a licensing system would also not necessarily contravene either the system of the Framework Decision nor its purpose that follows from the title, the Preamble, and the text of Framework Decision 2004/757/jha as well as from a special Council Declaration. One of these conditions is that the Member State makes certain that its criminal law provisions on illicit drug trafficking are in conformity with the constituent elements of criminal acts and penalties as required by the Framework Decision and that these provisions can be applied to drug activities (cannabis and all other substances) that take place without authorization. Another condition is that the licensing system may not result in cross-border effects or the hindering of transnational cooperation in combatting cross-border drug trafficking.
However, the preparatory history (i.e. historical interpretation), of Framework Decision 2004/757/jha points in another direction. Whereas the preparatory documents do not clarify, let alone concretize, what the meaning and purpose of the “without right” clause is, the difficult and long discussions about the preferred scope of the Framework Decision indicate that the Member States did not understand the clause to be an exception that could be applied very broadly. It is, however, difficult to give exact meaning to this, since it is not clear how strict or wide a possible interpretation the state parties envisaged. Moreover, it is a general rule of interpretation that the ordinary meaning of the terms of an instrument in their context and in the light of the purpose of the legislation is of more significance than the preparatory history of the instrument.54
As a result, it can be argued that the “without right” clause in Article 2(1) in Framework Decision 2004/757/jha could be interpreted within the framework of the EU law as to allow the introduction of a national licensing system regarding cannabis for recreational consumption. That is, if that system and the application thereof do not have cross-border effects and if the criminal law legislation that applies to activities concerning cannabis outside the licensing system and with respect to other substances were in conformity with harmonization obligations under the Framework Decision. Whether the clause offers more than just a theoretical option subsequently depends on the obligations that all EU Member States and the EU have under international law, including the UN narcotic drug conventions.
3 Options Considering the Obligations under the UN Drug Control System
The UN narcotic drug conventions – particularly: the UN Single Convention and the UN Convention against Illicit Traffic – do not allow for legalization, decriminalization or policy-based tolerance of cannabis cultivation, distribution, and sale for the recreational user market.55 A primary aim of the UN narcotic drug control system is to guarantee that the use of narcotic drugs is exclusively restricted to medical and scientific purposes.56 As far as the circulation of narcotic drugs for non-medical and non-scientific purposes is concerned, it seems hard to argue that the object and purpose of the conventions is not to ban such circulation completely. In view of this goal and considering the internal perspective of the multi-layered system of obligations in the UN narcotic drugs conventions, there is no legal room for any form of regulated permission (including through a national licensing system) of the cultivation or trade of cannabis with a view to supplying the recreational user market.57
However, as we have argued before, this does not necessarily mean that it is impossible for states to permit cannabis cultivation and trade through regulated legalization of cannabis in national law within the boundaries of international public law.58 One legal route is to permanently denounce the UN control system or at least the Single Convention and the Illicit Traffic Convention. Considering that this would abandon the whole drug control system, it seems doubtful that this is a realistic option. However, as we have argued elsewhere, there are two other possibilities for states. These possibilities, which can mutually reinforce each other, are: regulation based on positive human rights obligations and inter se modification of the UN narcotic drugs conventions.59 These will be discussed next. Finally, following that discussion, we will also briefly address the possibility of denouncing the UN narcotic drugs conventions with subsequent re-accession with a reservation.
3.1 Regulation Based on the Effectuation of Positive Human Rights Obligations
First, the option of regulation based on positive human rights obligations. For that option it is of importance that regulated permission of cannabis cultivation and trade may offer a better opportunity for states to guarantee fundamental human rights and thus to comply with their positive human rights obligations that require states to take measures in order to protect those rights. In fact, a state can be obliged to permit, under regulation, cannabis cultivation and trade for recreational use if and only if such regulation ensures a better protection of e.g. the right to health, the right to life, the right to physical and psychological integrity (the right not to be subjected to inhuman treatment) and the right to privacy than a prohibitive drug policy as prescribed by the international drugs conventions does.60 We argue that where obligations under international human rights law and under international drug conventions interfere with each other, positive human rights obligations – i.e., obligations for states to effectively provide human rights protection – have priority.61 Thus, a state can sufficiently justify a licensing system for cannabis for recreational use if that state genuinely believes and convincingly argues that through that system it can more effectively realize individual and public health, the safety of the public and/or the prevention of violent crime than that state could do with a prohibitive approach to recreational cannabis.
3.2 Inter Se Modification
The option of inter se modification concerns the possibility for a group of states to modify the UN narcotic drugs conventions as between themselves alone within the conditions set by Article 41 of the Vienna Convention on the Law of Treaties. To this end, like-minded states could conclude an inter se agreement to modify the UN narcotic drugs conventions in such a way that these conventions no longer comprise an obstacle for states to allow, for example, cultivation, distribution, and sale of cannabis for the recreational user market that takes place in accordance with a national licensing system set up by that state. The argument based on positive human rights obligations, because of their priority position, in addition validates this possibility of concluding an inter se agreement between certain states. Moreover, human rights offer a substantive framework to base such an agreement on, for example by requiring states to discourage use, production or marketing of cannabis. At the same time, an inter se agreement that is rooted in and is confined to human rights obligations would foster human rights at the core of the drug control system.
The question remains how an inter se agreement – which would amend the UN narcotic drug conventions in such a way that they would allow the group of involved states to introduce national licensing systems for recreational cannabis – would affect the legal situation that the European Union itself is a party to the UN Convention Against Illicit Traffic in respect to the areas within the competence of the Union.62 As we have explained above, presently the European Union has not claimed competence as regards the Illicit Traffic Convention that would cover the introduction of national licensing system for recreational cannabis. We, moreover, assert – considering, for example, the principle of subsidiarity and the limited competence in criminal matters63 – that it would be difficult for the European Union to legally claim such competence validly for the future. Furthermore, if the developments in the European Union are such that a group of Member States would be involved with the inter se agreement, this would also politically make it more difficult for the European Union to claim competence in this area.
3.3 Denunciation and Re-Accession with an Individual Reservation or a Group Reservation
Finally, there is a possibility of denouncing the UN narcotic drugs conventions with subsequent re-accession with a reservation64 that would allow for the cultivation, distribution, and sale of cannabis for the recreational user market that takes place in accordance with a national licensing system set up by the state. This deserves some explanation, since within the context of the UN narcotic drugs conventions, such a move would legally hardly be compatible with the object and purpose of both the Single Convention and the Illicit Traffic Convention, which is required by virtue of Article 19(c) of the Vienna Convention on the Law of Treaties.65 Nevertheless, the political reality is that Bolivia has been able to successfully derogate from its drug control treaty obligations regarding the coca leaf by denouncing the treaty and subsequently re-acceding with a reservation that allows for the trade and recreational consumption of the coca leaf in Bolivia.66 Moreover, there is the political reality of increasing (developments towards) regulation of recreational cannabis in countries in Europe (e.g. Germany, Luxembourg, Malta, the Netherlands, Switzerland), and also in North and South America (e.g., Canada and states in the USA, resp. Uruguay), and Asia (Thailand). This may mean that even though legalization of recreational cannabis through a reservation remains problematical in respect of the object and purpose of the UN narcotic drugs conventions, such reservations can in fact be made successfully because the number of objections by other convention parties that is needed to block the reservation falls short of the required one-third of treaty parties.67
Still, it would legally be more appropriate if the reservation were to be based on the state’s genuine belief and convincing argumentation that through a licensing system for recreational cannabis the state can better fulfil its positive human rights obligations, i.e.: that it can more effectively realize individual and public health (right to health) and/or the safety of its citizens and the prevention of violent crime (the right to life, the right to physical and psychological integrity) than that state can achieve with a prohibitive approach to recreational cannabis. The reason for this is similar to what we have explained above regarding the inter se agreement: the argument based on positive human rights obligations, because of their priority position over the UN narcotic drugs conventions, can fully validate the possibility of denouncing the UN narcotic drugs conventions with subsequent re-accession with a reservation that allows for regulated legalization of recreation cannabis.
In fact, it may be feasible for a group of states to use the option of making a reservation to achieve a kind of “inter se agreement light” through a group action. To this end, a number of states would need to agree on a formulation of the reservation to be made, and then all these states would need to denounce the UN narcotic drugs conventions at the same time and subsequently simultaneously re-access under the reservation they all agreed upon. It may be easier and quicker to accomplish such a move than an actual inter se agreement, while it is a legally sound approach if the reservation were to be based on positive human rights obligations concerning individual and public health and/or the safety and the prevention of violent crime. In fact, a group reservation could be used as a step in a development to later reach a full-blown inter se agreement.
4 Conclusion
This article explores the question to what extent the “without right” clause in Article 2(1) of the Framework Decision 2004/757/jha can be interpreted so as to allow EU Member States to regulate cannabis for recreational use through a licensing system. From a linguistic point of view (i.e. grammatical interpretation) it can be argued that this “without right” clause does allow for the introduction of a national licensing system for cultivation, distribution, and sale of cannabis for recreational consumption. An authorization under such a licensing system would indeed provide for a “right” in the meaning of Article 2(1) Framework Decision, while it would not go against its purpose, provided that several conditions are met: the licensing system may not result in, for example, cross-border effects or the hindering of transnational cooperation in combatting cross-border drug trafficking. Whereas the preparatory history with its long and difficult deliberations on the wording of the Framework Decision 2004/757/jha points in the direction of a more limited understanding of the scope of the “without right” clause, lacking any explicit statements or declarations, the exact intention of state parties is difficult to construct. Moreover, in the light of the general rule of interpretation, the ordinary meaning of the terms of an instrument in their context and in the light of its purpose is of more significance than the preparatory history of that instrument.
At a first glance, the possibility of the “without right” clause seems to provide only for a theoretical option for regulated legalization of recreational cannabis, considering the prohibitive approach of the UN narcotic drugs conventions to which all EU Members States are parties. The object and purpose of these conventions is to ban all circulation of narcotic drugs for non-medical and non-scientific purposes, to which end the conventions set out a stringent multi-layered prohibitive system that also applies to recreational cannabis. However, as we have argued elsewhere, this does not necessarily mean that it is impossible for states to permit cultivation and trade through regulated legalization of cannabis in national law within the boundaries of international public law. Several legal options can be considered.
First, states can denounce the UN narcotic drugs conventions altogether. Considering the importance of these conventions far beyond the issue of cannabis regulation, this option does in fact seem only of theoretical use. Second, the regulation of cannabis for recreational use can be based on positive human rights obligations of states to guarantee fundamental human rights more effectively. In fact, a state can be obliged to permit, under regulation, cannabis cultivation and trade for recreational use if and only if such regulation can more effectively realize individual and public health (right to health) and/or the safety of the public and the prevention of violent crime (the right to life, the right to physical and psychological integrity) than that state can achieve with a prohibitive approach to recreational cannabis as prescribed by the international drugs conventions. The conflict between obligations under international human rights law and under international drug conventions, should arguably be resolved in favour of prioritizing positive human rights obligations. A third option is to create an inter se agreement of like-minded states between themselves alone by which they deviate from the obligations under the UN narcotic drugs conventions. Related to this, a fourth option would be for states to denounce the UN drugs conventions and re-access subsequently with a reservation allowing for regulation of cannabis for recreational use.
All these options separately would cause political and practical difficulties for states. However, we argue that a cumulation of these options can have a combined strengthening effect and indeed present a legally sound and politically viable opportunity to regulate cannabis for recreational use without denouncing the whole UN drug control system. Arguably, states should base an inter se agreement or a (group or individual) reservation to the UN narcotic drugs conventions that deviates from the obligations deriving from these conventions, on their positive human rights obligations. Such an approach can further legitimize the application of the “without right” clause for regulating cannabis for recreational use through a national licensing system. In other words, an inter se agreement between states or a reservation that is based on convincing argumentation that cannabis regulation ensures a more effective protection of human rights, provides for a “right” that would justify deviation from obligations to criminalize cannabis for recreational use under Framework Decision 2004/757/jha.
Prof. Dr. P.H.P.H.M.C. (Piet Hein) van Kempen and Prof. Dr. M.I. (Masha) Fedorova are both full professor of criminal law and criminal procedure law at Radboud University, the Netherlands. They have extensively published in both English and Dutch on the United Nations Narcotic Drugs Conventions, European Union law on drugs trafficking, and international public law and international human rights law in relation to questions regarding the regulation of trafficking and use of recreational drugs. The original language of this article is English.
Wet van 13 november 2019, houdende regels inzake een uniform experiment met teelt en verkoop van hennep en hasjiesj voor recreatief gebruik in een gesloten coffeeshopketen, Stb. 2019/433 en Stb. 2020/216 (in force 1 July 2021) (Kamerstukken 34997). See also https://www.government.nl/topics/drugs/controlled-cannabis-supply-chain-experiment/background-and-design-of-the-controlled-cannabis-supply-chain-experiment.
Act No. lxvi of 2021 to establish the Authority on the Responsible Use of Cannabis and to amend various laws relating to certain cannabis activities (last accessed on 2 June 2022 at https://parlament.mt/media/115003/act-lxvi-cannabis.pdf).
See more elaborately on the so-called Cannabis Social Clubs P.H. van Kempen & M. Fedorova, International Law and Cannabis I. Regulation of Cannabis Cultivation for Recreational Use under the UN Narcotic Drugs Conventions and the EU Legal Instruments in Anti-Drugs Policy (Cambridge/Antwerp/Portland: Intersentia, 2019) p. 192–195, 199–201; V. Belackova & C. Wilkins, ‘Consumer agency in cannabis supply – Exploring auto-regulatory documents of the cannabis social clubs in Spain’, International Journal of Drug Policy (2018) 26–34.
See Accord de coalition 2018–2023, Luxembourg, le 3 décembre 2018, p. 105, en Projet “Cannabis récréatif” (last accessed on 2 June 2022 at https://gouvernement.lu/fr. See also International Narcotics Control Board (incb), Report for 2021, p. 40, 111.
Rapport d’étape sur le cannabis récréatif établi par la mission d’information commune sur la règlementation et l’impact des différents usages du cannabis, Assemblée Nationale 5 mai 2021, p. 27–28. Also, incb, Report for 2021, p. 111.
Mehr Fortschritt wagen. Bündnis für Freiheit, Gerechtigkeit und Nachhaltigkeit. Koalitionsvertrag 2021–2025 zwischen der Sozialdemokratischen Partei Deutschlands (spd), Bündnis 90 / Die Grünen und den Freien Demokraten (fdp), Berlin, den 7. Dezember 2021, p. 68. See also “Eckpunktepapier der Bundesregierung zur Einführung einer kontrollierten Abgabe von Cannabis an Erwachsene zu Genusszwecken “, https://www.bundesgesundheitsministerium.de/fileadmin/Dateien/3_Downloads/Gesetze_und_Verordnungen/GuV/C/Kabinettvorlage_Eckpunktepapier_Abgabe_Cannabis.pdf.
Gesetzentwurf, Deutscher Bundestag 18. Wahlperiode, Drucksache 18/4204, 04.03.2015.
Council Framework Decision 2004/757/jha of 25 October 2004 laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking, oj l 335/8 (11.11.2004).
For practical purposes we refer to the “UN narcotic drugs conventions”, although they strictly speaking also concern psychotropic substances. The conventions are: the United Nations Single Convention on Narcotic Drugs, New York, 30 March 1961, 520 unts 151, in force 13 December 1964, as amended by the Protocol Amending the Single Convention on Narcotic Drugs, 1961, Geneva, 25 March 1972, 976 unts 3, in force 8 August 1975; the United Nations Convention on Psychotropic Substances, Vienna, 21 February 1971, 1019 unts 175, in force 16 August 1976; and the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Vienna, 20 December 1988, 1582 unts 95, in force 11 November 1990.
For the “medical and scientific purposes” clause, see specifically the Preamble and Article 4 of the Single Convention.
Gesetzentwurf, Deutscher Bundestag 18. Wahlperiode, Drucksache 18/4204, 04.03.2015 (Begründung), p. 45–46.
In our previous study we have not elaborated on the specific question whether a licensing system regulating cannabis could be allowed under Article 2(1) of Framework Decision 2004/757/jha, see P.H. van Kempen & M. Fedorova, International Law and Cannabis I. Regulation of Cannabis Cultivation for Recreational Use under the UN Narcotic Drugs Conventions and the EU Legal Instruments in Anti-Drugs Policy (Cambridge/Antwerp/Portland: Intersentia, 2019).
See also P.H. van Kempen & M. Fedorova, International Law and Cannabis I. Regulation of Cannabis Cultivation for Recreational Use under the UN Narcotic Drugs Conventions and the EU Legal Instruments in Anti-Drugs Policy (Cambridge/Antwerp/Portland: Intersentia, 2019) pp. 119–123.
See e.g. cjeu 26 October 1982, Case 240/81 (Einberger); cjeu 5 July 1988, Case 289/86 (Happy Family); cjeu 28 May 1998, Case C-3/97 (Goodwin & Unstead); cjeu 29 June 1999, Case C-158/98 (Coffeeshop Siberië vof); cjeu 16 December 2010, Case C-137/09 (Josemans).
See cjeu 16 December 2010, Case C-137/09 (Josemans), par. 36–43.
See cjeu 16 December 2010, Case C-137/09 (Josemans), par. 55–60.
See more elaborately e.g. A. Klip, European Criminal Law. An Integrative Approach (Cambridge/Antwerp/Chicago: Intersentia, 2021) pp. 138–147.
See more elaborately e.g. Klip 2021, pp. 149–152. Point of departure is the literal interpretation, but where the language versions of a provisions diverge, the Court proceeds with the contextual and teleological approach taking the purpose and general scheme of the rules of which the provision forms a part into account.
Court of Justice EU 24 May 2016, C-108/16 ppu (Paweł Dworzecki), par. 28.
For more elaboration and references to case law see A. Klip, European Criminal Law. An Integrative Approach (Cambridge/Antwerp/Chicago: Intersentia, 2021) pp. 156–159.
See further below more elaborately on the object and purpose of the Framework Decisions.
For the analysis on which we base our finding, see P.H. van Kempen & M. Fedorova, International Law and Cannabis I. Regulation of Cannabis Cultivation for Recreational Use under the UN Narcotic Drugs Conventions and the EU Legal Instruments in Anti-Drugs Policy (Cambridge/Antwerp/Portland: Intersentia, 2019) pp. 45–46, 133–135.
For the definition of ‘Illicit traffic’ under the 1988 Convention, see Article 1(m) and Article 3(1) and (2) therein.
Explanatory Memorandum, Proposal for a Council Framework Decision laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking, Brussels, 23.5.2001, com(2001) 259 final, 2001/0114 (cns), p. 5.
Council of the European Union, Proposal for a Council Framework Decision […] illicit drug trafficking, Interinstitutional File: 2001/0114 (cns), 5297/02, DROIPEN 1, CORDROGUE 9, Brussels, 17 January 2002 (22.01), p. 3.
See Report on the proposal for a Council Framework Decision […] illicit drug trafficking, Brussels: European Parliament, Committee on Citizens’ Freedoms and Rights, Justice and Home Affairs, Rapporteur A.M. Oostlander, 2001/0114(cns), A5-0095/2004, 23 February 2004, pe 338.598, p. 6.
Council of the European Union, Proposal for a Council Framework Decision […] illicit drug trafficking, Interinstitutional File: 2001/0114 (cns), 5733/02, DROIPEN 3, CORDROGUE 16, Brussels, 30 January 2002 (04.02) (or. fr), p. 4 (footnote 2).
E.g. Council of the European Union, Proposal for a Council Framework Decision […] illicit drug trafficking, Interinstitutional File: 2001/0114 (cns), 6249/02, DROIPEN 9, CORDROGUE 19, Brussels, 14 February 2002 (20.02) (or. fr), p. 5 (footnote 1). The Dutch government was of the opinion that the Framework Decision should only focus on organized international drug trafficking, i.e. cross-border drug trafficking in large quantities; see parliamentary documents: Kamerstukken ii 2001/02, 22112, nr. 213 (Brief), p. 9; Kamerstukken ii 2001/02, 23490, nr. 13m and 236 (Brief), p. 12.
Cf. 2548th Council meeting (jha), in Brussels on 27 and 28 November 2003, C/03/334, 14995/03 (Presse 334), p. 6.
Cf. P.H. van Kempen & M. Fedorova, International Law and Cannabis I. Regulation of Cannabis Cultivation for Recreational Use under the UN Narcotic Drugs Conventions and the EU Legal Instruments in Anti-Drugs Policy (Cambridge/Antwerp/Portland: Intersentia, 2019) pp. 134–136.
See also P.H. van Kempen & M. Fedorova, International Law and Cannabis I. Regulation of Cannabis Cultivation for Recreational Use under the UN Narcotic Drugs Conventions and the EU Legal Instruments in Anti-Drugs Policy (Cambridge/Antwerp/Portland: Intersentia, 2019) pp. 133–135.
See Report on the Proposal for a Council Framework Decision […] illicit drug trafficking, Brussels: European Parliament, Committee on Citizens’ Freedoms and Rights, Justice and Home Affairs, Rapporteur A.M. Oostlander, 2001/0114(cns), A5-0095/2004, 23 February 2004, pe 338.598, p. 6, 7.
Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/jha, oj l 335/1 (17.12.2011); Directive 2013/40/EU of the European Parliament and of the Council of 12 August 2013 on attacks against information systems and replacing Council Framework Decision 2005/222/jha, oj l 218/8 (14.8.2013). More generally on the instruments Directives and Framework decisions see e.g. Klip, European Criminal Law. An Integrative Approach (Cambridge/Antwerp/Chicago: Intersentia, 2021) pp. 57–58; 59–61. On the legal effects of Directives that amend of repeal Framework Decisions see for example H. Satzger, ‘Legal Effects of Directives Amending or Repealing Pre-Lisbon Framework Decision’, New Journal of European Criminal Law 2015, vol. 6(4), pp. 528–537.
Article 3 of Directive 2013/40/EU.
The brackets contain the translation into English by the authors.
Declaration for entry in the Council minutes, in: Annex to Council of the European Union, Adoption of the Council Framework Decision […] illicit drug trafficking, Brussels: 28 September 2004, 2001/0114 (cns), 12451/04, DROIPEN 47, CORDROGUE 63. Also in: 2613th Council meeting (jha), in Luxembourg on 25 and 26 October 2004, Brussels, 10 November 2004 (12.11) (or. fr), 13899/04 ADD 1, pv/cons 62, jai 398, p. 4 (Item 2). The text of the declaration can also be found in P.H. van Kempen & M. Fedorova, International Law and Cannabis I. Regulation of Cannabis Cultivation for Recreational Use under the UN Narcotic Drugs Conventions and the EU Legal Instruments in Anti-Drugs Policy (Cambridge/Antwerp/Portland: Intersentia, 2019) p. 117.
An agreement between the Kingdom of the Netherlands, the Kingdom of Belgium, the Federal Republic of Germany, the French Republic and the Grand Duchy of Luxembourg regarding the gradual abolition of checks at the common borders, Schengen 14 June 1985 (Schengen Agreement), oj 2000 L 239/13 (22.9.2000); Convention implementing the Schengen Agreement of 14 June 1985, 19 June 1990, oj 2000 L 239/19 (22.9.2000). The Schengen acquis is integrated into the framework of the European Union, Protocol (No1 19), oj C326 (26.10.2012), p. 290–292. See also cjeu 18 July 2007, Case C-367/05 (Norma Kwaaijenbrink).
oj 1996 L 342/6 (31.12.1996). Joint Action 96/750/jha was repealed as of 21 February 2016 by Article 1 of Regulation (EU) 2016/95 of the European Parliament and of the Council of 20 January 2016 repealing certain acts in the field of police cooperation and judicial cooperation in criminal matters, oj 2016 L 26/9–12 (2.2.2016).
Protocol (No1 19) integrating the Schengen acquis into the framework of the European Union, oj C326 (26.10.2012), p. 290–292. See e.g. cjeu 18 July 2007, Case C-367/05 (Norma Kraaijenbrink). On the relevance and the limitations of a coherent interpretation of Community and Union law see Opinion of AG Kokott 8 March 2007, Case C-467/05 (Giovanni Dell’Orto), further discussed in Klip 2021, p.154–155.
Explanatory Memorandum, Proposal for a Council Framework Decision […] illicit drug trafficking, Brussels, 23.5.2001, com(2001) 259 final, 2001/0114 (cns), p. 4.
See Preamble under 6 and Article 1 of Regulation (EU) 2016/95 repealing certain acts in the field of police cooperation and judicial cooperation in criminal matters, oj l 26/9–12 (2.2.2016).
See more elaborate P.H. van Kempen & M. Fedorova, International Law and Cannabis I. Regulation of Cannabis Cultivation for Recreational Use under the UN Narcotic Drugs Conventions and the EU Legal Instruments in Anti-Drugs Policy (Cambridge/Antwerp/Portland: Intersentia, 2019) par. 3.2.
oj 2000 L 239/55, under 3.
See differently T.M.C. Asser Instituut, Experimenteren met het Gedogen van de Teelt van Cannabis ten Behoeve van de Bevoorrading van Coffeeshops – Internationaal rechtelijke en Europees rechtelijke aspecten, Den Haag: 2005, p. 19 (i.e., Asser Institute – Centre for International & European Law; Experimenting with tolerating the cultivation of cannabis for the supply of coffee shops – aspects of international and European law, The Hague: 2005).
Preamble and Article 10 of the Joint Action. See more elaborate P.H. van Kempen & M. Fedorova, International Law and Cannabis I. Regulation of Cannabis Cultivation for Recreational Use under the UN Narcotic Drugs Conventions and the EU Legal Instruments in Anti-Drugs Policy (Cambridge/Antwerp/Portland: Intersentia, 2019) par. 3.3.
See P.H. van Kempen & M. Fedorova, International Law and Cannabis I. Regulation of Cannabis Cultivation for Recreational Use under the UN Narcotic Drugs Conventions and the EU Legal Instruments in Anti-Drugs Policy (Cambridge/Antwerp/Portland: Intersentia, 2019) p. 115.
For the cannabis discussion, the 1971 Psychotropic Substances Convention is only of secondary importance. Delta-9-thc, the principal psychoactive component in cannabis, is scheduled under the 1971 Convention, whether synthetically produced or extracted from the plant. However, the 1971 Convention does not extend control to raw plant materials, as a result of which cannabis cultivation and the production of cannabis flower and resin are only subject to the control system of the 1961 Single Convention. Preparations made from isolated thc, however, are still controlled under the 1971 Convention, creating a somewhat confusing situation. While this has no effect for the products most prevalent in recreational markets (cannabis herb and hashish), the 1971 Convention may apply for example in the case of certain edibles.
Council Decision 90/611/eec of 22 October 1990 concerning the conclusion, on behalf of the European Economic Community, of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, oj 1990 L 326/56 (24.11.1990).
With regard to Table I, see e.g. the recent Council Decision (EU) 2022/393 of 3 March 2022 on the position to be taken, on behalf of the European Union, in the 65th session of the Commission on Narcotic Drugs as regards the addition of three substances to the list of substances in Table I of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, oj l 79/36 (9.3.2022).
See Article 5 of the Treaty on European Union and Article 83 of the Treaty on the Functioning of the European Union.
Confirmed in e.g. cjeu 26 October 1982, Case 240/81 (Einberger), par. 9; P.H. van Kempen & M. Fedorova, International Law and Cannabis I. Regulation of Cannabis Cultivation for Recreational Use under the UN Narcotic Drugs Conventions and the EU Legal Instruments in Anti-Drugs Policy (Cambridge/Antwerp/Portland: Intersentia, 2019) pp. 40–46.
I.e., apart from criminal law justification defences.
For more elaboration and references to case law see Klip, 2021) pp. p. 156–159. Cf. Articles 31 and 32 of the vclt. See also J. Odermatt, ‘The Use of International Treaty Law by the Court of Justice of the European Union’, in: Cambridge Yearbook of European Legal Studies (2015) 121–144 at 122, who remarks that the EU Court of Justice’s “emphasis on the ‘object and purpose’ of a treaty, and its reluctance to examine preparatory work or subsequent practice of the parties, for example, mirrors the approach in EU law that favours more teleological reasoning.”
For an elaborate analysis of the obligations under the UN narcotic drug control system, see P.H. van Kempen & M. Fedorova, International Law and Cannabis I. Regulation of Cannabis Cultivation for Recreational Use under the UN Narcotic Drugs Conventions and the EU Legal Instruments in Anti-Drugs Policy (Cambridge/Antwerp/Portland: Intersentia, 2019). See also the Report of the International Narcotics Control Board for 2018, p. 2 and 10–12, and its report for 2021, p. 37 (USA), 40 (Luxembourg), 41 (the Netherlands), 89 (Uruguay), 111–112 (general, but also in respect of France, Malta, and Switzerland), 124–125 (general).
See Preamble to the Single Convention. See also United Nations, Commentary on the Single Convention on Narcotic Drugs, 1961, New York: 1973, p. 110. Perhaps superfluously, we note that the UN drugs control system does not apply to the cultivation of the cannabis plant exclusively for industrial purposes (fibre and seed) or horticultural purposes; see, e.g., Articles 2(9) and 28(2) of the Single Convention.
See also e.g. D.R. Bewley-Taylor, ‘The Contemporary International Drug Control System: A History of the ungass Decade’, in: J. Collins (ed.), Governing the Global Drug Wars, London School of Economics, 2012, p. 49–55 at 50.
See P.H.P.H.M.C. van Kempen & M.I. Fedorova, ‘Regulated Legalization of Cannabis through Positive Human Rights Obligations and Inter se Treaty Modification’, 20 International Community Law Review (2018) 493–526.
Much of the following is derived from the much more elaborate analysis in the publication referred to in the previous footnote.
P.H. van Kempen & M. Fedorova, International Law and Cannabis ii. Regulation of Cannabis Cultivation and Trade for Recreational Use: Positive Human Rights Obligations versus UN Narcotic Drugs Conventions (Cambridge/Antwerp/Portland: Intersentia, 2019). This study investigates positive obligations arising from the right to life, the right not to be subjected to inhumane treatment and the rights to private life in the International Covenant on Civil and Political Rights and the European Convention on Human Rights, as well as the right to health in the International Covenant on Economic, Social and Cultural Rights and the European Social Charter. The corresponding rights (Article 2, 4, 7, 35) in the Charter of Fundamental Rights of the European Union (cfreu) have thus not been investigated. However, Article 52 of the Charter determines that the Charter rights that correspond to rights guaranteed by the European Convention of Human Rights, shall have the same meaning and scope or provide more extensive protection.
The finding that human rights have priority over the UN narcotic drugs conventions rests on the elaborate analysis in P.H. van Kempen & M. Fedorova, International Law and Cannabis ii. Regulation of Cannabis Cultivation and Trade for Recreational Use: Positive Human Rights Obligations versus UN Narcotic Drugs Conventions (Cambridge/Antwerp/Portland: Intersentia, 2019) pp. 161–285.
Council Decision 90/611/eec of 22 October 1990 concerning the conclusion, on behalf of the European Economic Community, of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, oj 1990 L 326/56 (24.11.1990).
See Article 5 of the Treaty on European Union and Article 83 of the Treaty on the Functioning of the European Union.
Whereas the Single Convention provides for the possibility (in Article 46) to denounce the Convention and does not explicitly raise obstacles to re-joining after denunciation (see Article 40(3)), the Illicit Traffic Convention does not contain explicit procedural limitations to any reservations to be formulated and does not even contain a provision about reservations.
P.H. van Kempen & M. Fedorova, International Law and Cannabis I. Regulation of Cannabis Cultivation for Recreational Use under the UN Narcotic Drugs Conventions and the EU Legal Instruments in Anti-Drugs Policy (Cambridge/Antwerp/Portland: Intersentia, 2019) pp. 147–150.
See N. Boister & M. Jelsma, ‘Inter se Modification of the UN Drug Control Conventions. An Exploration of its Applicability to Legitimise the Legal Regulation of Cannabis Markets’, 20 International Community Law Review (2018) 456–492 at 465, 485–487.
See Article 50(3) of the Single Convention.