Drugs policy in the Netherlands: Annex III
Conclusions from the report by J.J.E. Schutte, Director of the Legal Service at the Council of the European Union and former professor of international criminal law at the University of Amsterdam, on the obligations arising from international law concerning the enforcement by the public authorities of provisions on narcotic drugs and psychotropic substances by which the Kingdom of the Netherlands is bound*.
The legal implications of legalising cannabis and cannabis products
Taking as a hypothesis the possibility that it might be asked what the consequences would be with regard to international law if the Netherlands unilaterally decided to legalise the market in cannabis and cannabis products, that is to say to repeal the provisions making it a criminal offence to cultivate cannabis plants for purposes other than those legitimate ones recognised in the 1961 Single Convention, or to produce, possess or traffic in cannabis and cannabis products (irrespective of whether or not it was decided that the import, export and transit of such substances should continue to be criminal offences), in the light of the above the following conclusions may be drawn.
- The 1961 Single Convention on Narcotic Drugs, as amended by protocol in 1972, would have to be denounced, since a decision of the above nature would be incompatible with the obligations arising from article 2, paragraphs 1 and 5, article 4, article 36 and article 49. In the light of article 50, paragraph 3, of the Convention, there would be little chance of again becoming a Party to the Convention while entering a reservation with regard to the criminality of various acts concerning cannabis and cannabis products; it is probable that those countries which do not wish to make a formal distinction between hard and soft drugs would oppose such a reservation and that they would make up more than one third of the total number of Parties to the Convention.
- Such a decision would not bring the Netherlands into conflict with the Convention on Psychotropic Substances.
- The 1988 UN Convention against illicit traffic in narcotic drugs and psychotropic substances would have to be denounced, as such a decision would be incompatible with the obligations arising from article 3. Unlike the 1961 Single Convention, the Convention does not contain any specific provisions on reservations, so that at first sight there would appear to be fewer legal obstacles to the Netherlands once again becoming Party to the Convention, while entering a reservation. In practice, however, a similar degree of opposition could be expected from other Parties to the Convention as to a similar reservation in respect of the 1961 Single Convention.
- Such a decision would bring the Netherlands directly into conflict with the 1985 Schengen Agreement on the gradual abolition of controls at common borders.
- The 1990 Convention implementing the 1985 Schengen Agreement, however, would present an obstacle to such a decision, which would be incompatible with article 71, which assumes full compliance with the 1961 Single Convention, as amended by protocol in 1972, and with the 1988 UN Convention. The Convention implementing the Schengen Agreement, article 137 of which prohibits reservations (except those referred to in article 60, which are not relevant here), does not contain any provisions governing denunciation. This means that article 56 of the Vienna Convention on the Law of Treaties applies in respect of the possibility of denouncing the Agreement; the first paragraph of that article reads as follows:
A treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless:
- it is established that the parties intended to admit the possibility of denunciation or withdrawal; or
- a right of denunciation or withdrawal may be implied by the nature of the treaty.
There are no indications that the Contracting Parties to the Agreement intended to make denunciation or withdrawal from the Agreement possible and the nature of the Agreement also appears to preclude this. After all, according to its preamble, the intention of the Convention was to achieve a goal corresponding to the objective of establishing a single market formulated in the Treaty establishing the European Community. That objective cannot be called into question by denunciation of an Agreement which puts into practice the principle of the free movement of persons within an area without internal borders.
It must be concluded that the Convention implementing the Schengen Agreement cannot be denounced; at most it can be amended or replaced by Community law or agreements between all the Member States of the European Union (cf. articles 134, 141 and 142 of the Convention implementing the Schengen Agreement).
- The Council of Europe Convention on drug trafficking by sea of 31 January 1995 obliges states party to it to apply it to all criminal offences referred to in article 3, paragraph 1, of the 1988 UN Convention. In accordance with article 31, paragraph 1, of the Council of Europe Convention, reservations may only be entered in respect of two provisions, neither of which are of relevance in this context. A decision as described above would result in the Kingdom of the Netherlands being unable to become or remain a Party to the Convention, unless the decision did not apply to acts outside the Netherlands.
- Such a decision would not bring the Netherlands into conflict with other Council of Europe conventions on cooperation in criminal matters.
- Nor would it bring the Netherlands directly into conflict with the Treaty on European Union.
- Article 1 of Council Directive 91/308/EEC on prevention of the use of the financial system for the purpose of money laundering contains a definition of "money laundering" which is derived from the corresponding definitions in the 1988 UN Convention and the Council of Europe Convention of 8 November 1990 on laundering, search, seizure and confiscation of the proceeds from crime. The definitions include descriptions of aiding, abetting, facilitating and counselling the commission of certain criminal activities. The Directive defines "criminal activity" as:
a crime specified in Article 3(1)(a) of the Vienna Convention (i.e. the UN Convention of 1988) and any other criminal activity designated as such for the purposes of this Directive by each Member State.
Article 2 of the Directive goes on to provide that the Member States must ensure that money laundering as defined in the Directive is prohibited. In Dutch legislation money laundering offences are deemed to constitute the criminal offence of "handling". This involves acts relating to objects - including money - which the person committing the act knows or might reasonably have suspected to have been obtained through the commission of an offence. Under the provisions of the Directive acts of handling involving money derived from the offences referred to in article 3, paragraph 1, of the 1988 UN Convention have to be prohibited. If certain forms of the production of or trafficking in cannabis or cannabis products were no longer regarded as indictable offences, carrying out acts relating to the proceeds from that production or trafficking would also cease to be covered by the provisions on prohibited acts of handling. The question is whether this would give rise to a violation of Community obligations, a question which should be seen in the light of the statement by the Representatives of the Governments of the Member States, meeting within the Council, which was adopted at the same time as the Directive and published in the Official Journal of the European Communities. It reads as follows.
The representatives of the Governments of the Member States, meeting within the Council,
Recalling that the Member States signed the United Nations Convention against illicit traffic in narcotic drugs and psychotropic substances, adopted on 19 December 1988 in Vienna;
Recalling also that most Member States have already signed the Council of Europe Convention on laundering, tracing, seizure and confiscation of proceeds of crime on 8 November 1990 in Strasbourg;
Conscious of the fact that the description of money laundering contained in Article 1 of Council Directive 91/308/EEC derives its wording from the relevant provisions of the aforementioned Conventions;
Hereby undertake to take all necessary steps by 31 December 1992 at the latest to enact criminal legislation enabling them to comply with their obligations under the aforementioned instruments.
The reasoning for this statement is that in the opinion of the Council an obligation to make money laundering a criminal offence cannot be imposed by Community law but is purely a consequence of obligations which the Member States have taken upon themselves under the UN and Council of Europe Conventions mentioned above. If this interpretation is correct, a decision to legalise certain acts relating to cannabis and cannabis products would not violate the obligations arising from the Directive.
A somewhat different issue is whether the intergovernmental statement adopted at the same time as the Directive constitutes an instrument which can be equated with an international agreement and which imposes binding obligations on the Member States vis- à-vis one another. What is certain is that the statement was in any event not subject to the constitutional procedures prescribed for the approval of international agreements in the Netherlands and does not on the other hand fall into any of the categories of international agreements which do not require parliamentary approval. It must be concluded therefore that the Netherlands government in any event regarded the statement only as a political declaration, which is at most binding on the government of the day but not on the Kingdom of the Netherlands as such.
In this situation it could be concluded that a decision in favour of legalisation would not violate obligations under international law arising from the Directive or the accompanying statement.
- The obligations which arise from the regulations and the Directive on monitoring substances which can be used for the illegal manufacture of narcotic drugs and psychotropic substances would appear not to be directly affected by a decision to legalise cannabis and cannabis products. The precursors covered by these Community instruments are named in the lists, which are divided into three categories and which are provided in the identical annexes to the various instruments. The category 3 substances include a number which could play a role in the manufacture of cannabis products, namely acetone, ethyl ether and toluene, though they also play a role in the manufacture of certain hard drugs. However, the category 3 substances are subject to the least stringent regulations. In the Regulation (900/92, amending Regulation 3677/90) article 5a contains provisions governing the export of these substances from the Community, in which regard the main concern would, on the basis of the provisions of paragraph 1b, appear to be the illegal manufacture of heroin or cocaine in certain third countries. On the other hand, article 6, paragraph 2, states that without prejudice to the administrative measures for which the Regulation provides:
... the competent authorities of each Member State may prohibit the introduction of scheduled substances into Community customs territory or their departure from it, if there are reasonable ground for suspecting that the substances are intended for the illicit manufacture of narcotic drugs or psychotropic substances
The only provision in the Directive (92/109/EEC) which is of relevance to category 3 substances is article 5, which obliges the Member States to take the necessary measures to ensure that close cooperation is established between the competent authorities and the operators, so that operators:
- notify the competent authorities immediately of any circumstances, such as unusual orders or transactions involving scheduled substances, which suggest that such substances to be placed on the market or manufactured, as the case may be, may be diverted for the illicit manufacture of narcotic drugs or psychotropic substances,
- provide the competent authorities in summary form with such information about their transactions involving scheduled substances as the competent authorities may require.
A decision to legalise the production of cannabis and cannabis products in the Netherlands could result in the Regulation and Directive being applied somewhat differently in the Netherlands than in other Member States. It would not appear that this would constitute a violation of the said instruments, however.
- Such a decision would not conflict with obligations arising from the Regulation on the establishment of a European Monitoring Centre for Drugs and Drug Addiction.
- As the term "illicit drug trafficking" is not defined in the Joint action concerning the Europol Drugs Unit, a decision in favour of legalisation would not bring the Netherlands directly into conflict with its provisions.
- The Convention establishing Europol does not oblige the Member States to make the acts over which Europol has or will have jurisdiction criminal offences. The definitions given of various categories of crime in article 2, paragraph 5, and in the annex to article 2, are intended to define the scope of Europol's jurisdiction as determined by subject-matter. The provisions at the end of the annex to article 2, which state that the types of crime referred to in article 2 and the annex to it are to be assessed by the competent national authorities in accordance with the national legislation of their respective states were drawn up to enable different views to apply in the different Member States on the need to make the acts referred to in article 2 and in the annex criminal offences and on the manner in which this should be done.
This leads one to the conclusion that strictly speaking a decision in favour of legalisation would not bring the Netherlands into conflict with obligations arising from the Europol Convention.
- The same conclusion must be drawn in respect of the various regulations on international administrative assistance in customs matters. Where such regulations refer expressly to illegal international drug trafficking, the concept is not defined.
- The implications of the provisions on cooperation in combating narcotic drugs in mixed agreements between the European Community and its Member States and third states cannot fully be foreseen. The provisions in themselves are couched in fairly general terms and appear more to enunciate general principles than concrete obligations. It should be borne in mind, however, that a specific executive agency tends to be set up for each such agreement, whether in the form of an association council or under some other title, comprising members of the Council of the European Union and members of the European Commission on the one hand and members of the government of the third state on the other. On paper, such bodies have far-reaching powers. They have the authority, for example, to take decisions in all instances provided for by the agreement to ensure that the objectives of that agreement are met.
Such decisions are then binding on the Parties, which are obliged to implement them.
This means that such councils also have the authority to take decisions which are binding on the Parties under specific provisions on narcotic drugs.
It is important to point out that the "Parties" to such agreements are on the one hand the Community and its Member States and on the other the third State. It is not therefore a case of each Member State of the European Union being a separate Party to the agreement.
This is also evidenced by the fact that such agreements can only be denounced by one of the two Parties, that is to say the Community and all its Member States jointly, or the third State. The Netherlands cannot unilaterally withdraw from obligations which may arise from such agreements.
The position of the Community and its Member States with regard to decision-making in such councils is determined in advance, in accordance with the procedures which apply to decision-making on the subject in question within the Union. In so far as combating drug addiction and unlawful drug trafficking, as referred to in article K.1 of the Treaty on European Union, is concerned, this means that a position is adopted unanimously (cf. article K.4, paragraph 3, of the Treaty on European Union). The Netherlands could therefore exercise its veto in such a situation if proposals were to be made which would impose an obligation to take measures which would not be possible without amending Dutch legislation or changing the principles of Dutch policy.
In view of the relative recentness of mixed agreements containing specific provisions on cooperation in combating narcotic drugs, no relevant decisions implementing such agreements exist as yet.
- In defining narcotic drugs, Article I of the bilateral agreement with Venezuela refers to the substances which are listed as such in the 1961 Single Convention, as amended by protocol in 1972. These include cannabis and cannabis products. Article II obliges the parties to join forces in carrying out specific programmes against drug abuse and to prevent, control and curb unlawful trafficking in and production of the drugs and substances referred to in Article I. If, as a result of a decision in favour of legalisation, the Kingdom of the Netherlands were to denounce the 1961 Single Convention this would affect the agreement with Venezuela. It would appear that the agreement would have to be amended if such a decision were taken. If the other party objected, the agreement could be terminated under the terms of article XI, possibly only in respect of the European territory of the Netherlands.