Side event: The green wave hits Europe: Recent cannabis regulation initiatives in Europe

Event co-sponsored by: Forum Droghe, Associazione Luca Coscioni, ICEERS, IDPC, reLeaf Malta, TNI, Transform, WOLA
[youtube https://www.youtube.com/watch?v=q6kGiTD_QQw&w=560&h=315]
The event recording is also available here.

Susanna Ronconi, Forum Droghe. We know that the reform of cannabis is going on in Europe with different outcomes. Malta has already decriminalised personal use and possession. Luxembourg, Germany, Italy and others are considering reform as well. It’s important to understand the different legal models being discussed. Another important issue to discuss now is to what extent these legal models are in line with the international drug control treaties and the EU legal framework. Thanks to our three speakers we will discuss this today.

Andrew Bonello, reLeaf Malta. We’re the first movers in Europe on cannabis legalisation, so it’s an exciting time. We have a law that came out last December on cannabis. This has been heralded by many international experts as a positive development. The law follows another law that came out in 2015 and that depenalised small amounts of drug possession. The new law is a mix between depenalisation, decriminalisation and criminalisation with police retaining the right to arrest you if there is suspicion of trafficking. This is tricky as we don’t understand how the police can identify a trafficker in possession of small amounts. This can unfortunately still get you into a lot of trouble. There are discrepancies with the CBD flower which is considered to be a narcotic by the police as they don’t understand that the flower has a low percentage of THC so they send it to get tested and people are still stripped-searched. It’s a period where the law is coming into effect and so it’s a period of uncertainty as people are not sure how the law is actually working. Not too many people understand the fine detail. Unfortunately the new law reflects discriminatory practices for cannabis consumers. There are still pressing matters that should be addressed, including the continued practice of law enforcement that criminalises the act of sharing cannabis: known as trafficking by sharing. We are also seeing a lack of social equity approach which is meant to remedy the wrongs of the past. It’s important for any reform to lay the foundations of creating better policies at home. Policy makers have to bear this in mind. Without social equity it would be difficult to move forward. There is a low threshold where it’s permitted to possess a drug at home and publicly, and a complete ban of consumption in associations and other designated places. We do have associations that will be set up. People might think of cannabis social clubs. The new law will address how consumers can access cannabis to consume safely by designing associations with max 500 members. But then you have go home to consume, which is an issue. Other things need urgent attention: the possibility to share cannabis at no cost. We will also propose the creation of a safe space which allows consumption onsite or other designated venues for members, therefore fulfilling the harm reduction principle and offering a community approach acting as a safety net. This is also beneficial for education and exchange on safer consumption. Another thing we’re worried about is that we need reassurance on how the police will interpret the law, and align de jure and de facto implementation of the law. Overall, we are definitely heading in the right direction. It was a bold decision to move forward with cannabis associations and limited amounts of possession. One thing I didn’t mention is that the expungement of criminal records has been included: so people who have been waiting in court cases or have a police record can have that cleaned if it falls in the parameters of the law. It will help a lot of people and we hope that when the associations do form, a social equity approach will be implemented to help people who have been so affected by past policies to get involved in the new cannabis setup. This leaves room for improvement but it’s a positive step forward. The cannabis authority has just been set up and they have our full support. We will continue the dialogue with government authorities and the cannabis authority as well.

Constanza Sánchez, ICEERS. The most important step for legal regulation in Europe has taken place in Malta, but other countries have also led on reforms and I will share some information on this, and then turn to the principles for social justice in regulated markets.

In Germany, the new government decided to fully regulate recreational cannabis markets for adults to ensure quality products and protect young people. They have an evaluation plan in 4 years to assess the social impacts of this policy. According to local experts, the passing of the law requires the approval of the German states. This might be more difficult. While the details of this regulation are not public yet, this makes this plan very attractive for many stakeholders.

In the case of Luxembourg, the coalition agreement that came from the 2018 elections are also leading on cannabis legalisation, for residents. There are two parts: up to 4 plants per household will be limited, and that will be in the place or residence and a ban of consumption in public. The quantities of cannabis in public can’t be more than 3 g.

In Italy, civil society has been particularly crucial for cannabis regulation. Thousands of people signed a request for cannabis legalisation. The Constitutional Court decided that this initiative was inadmissible. 70,000 people in 2016 also issued an initiative but this was also deemed as inadmissible by the Constitutional Court. The composition of the court will be reviewed on the 17th December and many mayors have expressed support for the reform so we will see if that changes.

In Spain, several years ago we had intense political activities on cannabis with a regulation of cannabis social clubs. In September 21, two bills were registered by 2 different left-wing parties and submitted for consideration to the Parliament. One of the drafts has more options (the one from Unidas-Podemos). It’s the most ambitious on the scope of regulation proposed, it is very detailed in terms of accessing cannabis, users associations, licences for distribution, and self cultivation. The social debate around this has been very tense: welcomed and also criticised because many think users associations should be regulated in a different way.

So now I’d like to share some reflections on social justice principles in regulation proposals. It’s not only in Spain but also other countries. Even within the diverse stakeholders the debates are very intense. The social and political debates are about what issues should be considered as priority. The question is: what should be the role of the state and civil society compared to that of the industry. In Malta, the intention of the law is to launch a social and non-profit model with the participation of civil society with interesting initiatives like a grievance board that could be used by people affected by criminalisation to seek redress. I will conclude with a few thoughts. It’s important to adopt a social perspective, by connecting regulation with social exclusion and inequalities created by prohibition. Regulatory proposals must go beyond a regulated market and address social exclusion. We also need to differentiate advocacy and lobby: public and social interests vs private interests. Both are legitimate, but these interests should be identified as such. Finally, this transition to regulated drug markets raises many concerns and decisions that are not easy to make. But the importance is whether we want a market that addresses the needs of the most vulnerable. We are able to build a model that moves away from prohibition and that is transparent, participatory and restorative, which will truly be a green wave for Europe.

Click here for the full speaking notes.

Tom Blickman, Transnational Institute. The consequences for the international framework are difficult. We are starting with conventions that are more than 60 years old and limit cannabis exclusively to medical and scientific purposes. We now see unprovoked and unjustified invasion of Ukraine, and this underlines a clear violation of international law. The drug control conventions don’t allow for the legal regulation of cannabis. But we now see countries that allow cannabis regulation and they haven’t taken steps to redress issues and tensions with international law. While I agree that the UN drug control treaties are outdated, I disagree that ignoring them is the right decision. International law is fragile and ignoring it is not a good thing. TNI, GDPO and WOLA and others have organised a CND side event to explain how regulated markets can be combined with new international law efforts. One way to be this is to review the conventions, but we are facing conflicting views internationally and it would be a diplomatic nightmare. You could also withdraw from the conventions but that would create diplomatic tensions too. So there are two more realistic options: one is to withdraw from the 1961 convention and reaccess with a reservation on cannabis. This was used by Bolivia on the coca leaf, after it failed in its attempt to review the convention. At the time, 48 countries objected to Bolivia’s reaccession, but this fell short of the 62 objections needed to block the reaccession. To strengthen this procedure, this could be done by a group of like-minded countries, which is growing (Canada, Switzerland, Netherlands, Germany, Malta…).

The next option is an inter se procedure for the treaty. This is an option planned in international law, to find a balance between treaty regimes on the one hand, and the need for change and absence of consensus on the other. The advantage of the procedure is that you do it outside the UN drug control conventions, you form a group of like-minded countries and take steps to formulate new International obligations. But you have to maintain your obligations to the other parties that are not part of the inter se agreement.

The correlation between UN conventions and EU law is entangled. The German bill faces hurdles at EU level, and so did the Luxembourg one. The German government is trying to address these issues already to ensure compatibility between the UN conventions and EU law. It proposes following the example of Bolivia: withdrawal and re-accession, and will take a formal request to the EU. An important difference between EU legislation and the UN drug control conventions is that there is a formal complaints and sanction mechanism at EU level. Article 40 of the Single Convention is a nuclear option, it has not been used in the case of cannabis in practice, you need to raise a dispute in the international court of justice. In the EU, however, the effective application and implementation of the law is the responsibility of the European Commission, and compared to the INCB, the Commission can initiate a complaints procedure against member states. It can lead to a dispute procedure at the European Court of Justice with the possibility of sanctions and fines for states to comply. So there is an easier to impose sanctions on those who don’t comply with EU law. States are, however, in favour of an exception if regulation is for personal consumption. This is to the discretion of each individual member states.

Click here for full speaking notes.

Susanna, Forum Droghe. I want to focus on the second part of your speech: the European regulation at EU level. It would be interesting to say something about the possibility of European civil society to make an advocacy action about this. I wonder if Marco Perduca is connected with us, so that we can know something more about the European initiative on cannabis.

Marco Perduca. I posted in the chat a link to the website that seeks to address some of the issues discussed by Tom. We would like to address those issues because even without going into detail, the Italian Constitutional Court found the proposal contradictory with EU law. I also want to make one comment: if 1961 is in another century, 2004 is still another era. After the 2016 UNGASS, we had member states telling us that flexibility and interpretation are a key feature of international law. We have to adapt to the new scenario, culture, etc. of our era. We need to see now if the case can go to the European Court of Justice and see how laws can be changed by the Parliament and Government, but also by citizens’ requests.

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