Cannabis in the City: Developments in local cannabis regulation in Europe ideas into movement AUTHORS: Tom Blickman, Katie Sandwell, and Dania Putri; Xabier Arana, Tom Decorte, Vibeke Asmussen Frank, Dirk J. Korf, Ingo Ilja Michels, Maj Nygaard-Christensen, Tim Pfeiffer-Gerschel, Heino Stöver, Bernd Werse, Frank Zobel This report draws on, and in parts reproduces, country reports written by Tom Decorte (Belgium); Vibeke Asmussen Frank & Maj Nygaard-Christensen (Denmark); Ingo Ilja Michels, Tim Pfeiffer-Gerschel, Heino Stöver & Bernd Werse (Germany); Dirk J. Korf (Netherlands); Xabier Arana (Spain); and Frank Zobel (Switzerland). These reports were produced as part of the New Approaches in Harm Reduction Policies and Practices project. EDITOR: Deborah Eade DESIGN: Guido Jelsma - www.guidojelsma.nl PUBLICATION DETAILS: Contents of the report may be quoted or reproduced for non-commercial purposes, provided that the source of information is properly cited. This project has been funded with support from the European Commission. This publication reflects the views only of the author, and the European Commission cannot be held responsible for any use which may be made of the information contained therein. TRANSNATIONAL INSTITUTE (TNI) De Wittenstraat 25, 1052 AK Amsterdam, The Netherlands Tel: +31-20-6626608, Fax: +31-20-6757176 E-mail: [email protected] www.tni.org/drugs @DrugLawReform Drugsanddemocracy Amsterdam, March 2019 2 | Cannabis in the City: Developments in local cannabis regulation in Europe transnationalinstitute Contents Cannabis and International Law 5 Policy Proposal: Regulated cannabis markets in Canada 6 The European Dimension 8 The Dutch Experience and International Law 10 Introduction to the Country Contexts 12 Belgium 13 Denmark 15 Germany 16 Netherlands 18 Policy Proposal: Summary of proposals for local regulation of the ‘back door’ in the 20 Netherlands Spain 21 Switzerland 23 Policy Proposal Berne: Safer Cannabis Research in Pharmacies Trial 25 Policy Spaces 26 Prosecutorial Discretion 26 Exploring the Extent of Municipal and Regional Powers –Regional regulation 30 Netherlands 30 Denmark 31 Policy Proposal: The Dutch Experiment 31 Policy Proposal: The Copenhagen Model 32 Germany 32 Spain 33 Switzerland 35 Policy Proposal: Basel-City 36 Belgium 36 Regulatory Matters and Definitions of Substances 37 Medicinal Cannabis 38 Political Levers: Pathways to national-level change or increased policy space 39 Advocacy by Municipalities and Other Local Authorities 39 Ballot Initiatives and Referenda 40 Expert Opinions and Advisory Bodies 41 Parliamentary (and Other Legislative) Initiatives 42 Non-State Actors 43 Civil Society Advocacy 43 Bottom-up Initiatives from Civil Society 44 Strategic Litigation and Legal Intervention 46 A Possible Framework for Moving Forward: From top-down to bottom-up 49 The National Level: Local Customisation 50 The EU Level: Multi-Level Governance 50 The UN Level: Inter-Se Modification 52 Conclusions 52 transnationalinstitute Cannabis in the City: Developments in local cannabis regulation in Europe | 3 In the last decade, there have been clear some cases, high financial costs associated signs of a shift in governments’ approaches with enforcing prohibitionist drug legislation to recreational cannabis markets. Countries and confronting dangerous methods of illicit including Uruguay and, more recently, Canada cultivation, the impacts of drug policies are – as well as a number of US states – have felt at the local, municipal, and regional moved to control cannabis through regulated level. Because of their unique relation to drug markets rather than prohibition. Proponents policy and a tendency to approach drug issues of this approach argue that prohibition has pragmatically rather than primarily as issues been largely ineffective in reducing cannabis of political or moral principle, cities have consumption, and has been linked to historically been important in championing significant negative impacts, including (often new drug policies. For example, in the 1990s, racialised) mass incarceration of drug users, European cities, organised into European threats to public health, high enforcement Cities on Drug Policy (ECPD), were crucial costs, and young people’s unrestricted access advocates of the harm-reduction based to cannabis via criminal markets. Proponents responses to the heroin crisis mentioned of regulation argue that controlled markets above. are safer: they allow governments to more effectively keep drugs out of the hands of Although cities and regional authorities minors; better protect cannabis users from may have some powers related to the being exposed to adulterated or contaminated implementation of drug policy, they often drugs, or to other ‘harder’ drugs, through feel shackled by national law, unable to act black markets and criminal suppliers; and directly to change policy. For this reason, would reduce the proceeds of criminal groups they have focused considerable energy on involved in the drug trade. However, after advocating some degree of reform of national decades of relatively progressive drug policy, laws that limit their ability to deal creatively Europe seems to be lagging behind the rest of with cannabis-related issues in their the world in relation to cannabis. jurisdictions. National governments, however, have generally been slow to respond to these During the linked crises of HIV and AIDS demands. States themselves have only limited and heroin in the 1990s, many European opportunities for reform, as they are bound governments adopted harm-reduction by international obligations stemming from models, reforming their national drug the United Nations (UN) conventions on drug policies in terms of public health. Since the control and other treaties and agreements. mid-1990s and early 2000s, however, the This has created something of an impasse focus of European drug policy seems to have in the area of cannabis reform, which actors shifted towards security, criminality and across Europe are trying to break in order to disorder. Since cannabis use is widespread develop more efficient, effective, and locally in many countries, and local production and adapted cannabis policies. distribution involves the black market and is often controlled by organised crime, this This paper examines six European shift has put cannabis policy back on the countries – Belgium, Denmark, Germany, agenda. Some jurisdictions have responded the Netherlands, Spain and Switzerland by reinforcing prohibitionist policies, while a – in order to better understand the tools number of regions, municipalities, and other being used – and the challenges faced – by sub-national jurisdictions are advocating municipal and regional governments calling regulation rather than prohibition. for different cannabis policies. Although the national contexts, histories, legislation, Around Europe, large cities in particular often state structures, and social contexts of bear the brunt of national drug policies. While these countries vary significantly, there are municipal and regional governments have important lessons to be learned by comparing limited power to influence national criminal different approaches. This paper draws on law, and therefore key elements of drug Country Reports (published separately) policy, cities and regions have to deal with the which were written by researchers within effects of these laws. From public nuisance each country, which offer a more detailed and disturbances caused by street dealing, to exploration of the respective reform efforts, social or public health issues resulting from as well as of the national political and policy unrestricted youth access to cannabis, to, in environment. 4 | Cannabis in the City: Developments in local cannabis regulation in Europe transnationalinstitute The picture that emerges from this research is Furthermore, while it may be less politically one of municipalities and regions struggling inflammatory for national governments to within restrictive policy frameworks. ‘turn a blind eye’ to changes at the sub- This report opens with a discussion of the national level, tacitly allowing them without combined challenges that have created the making corresponding changes to national current impasse in cannabis regulation at the law – the policy so far pursued by the United UN, European Union (EU), and national level. States – the principles of international law This is followed by a short introduction to the suggest that this does not avoid the relevant history and context of cannabis regulation legal issues.1 International treaties require and reform in each of the six countries, and countries to implement commitments some of the research findings. In short, throughout their territory, and are not we have identified two primary routes to sensitive to internal domestic jurisdictional reform which are currently being pursued distinctions, as the overarching 1969 Vienna by regional or municipal governments in the Convention on the Law of Treaties (VCLT) six countries. Although government actors stipulates: ‘a treaty is binding upon each may try to make direct changes to national party in respect of its entire territory’ (Article drug law, there are a number of spaces where 29).2 The 1961 Single Convention on Narcotic they may, either autonomously or with the Drugs, the foundation of today’s UN drug support of national governments, make control system, also specifies that it applies direct changes to drug policy without major ‘to all non-metropolitan territories