Holland / The Netherlands

THE NETHERLANDS CAN LEGALISE INDEPENDENTLY

The question of whether legalisation of drugs would be desirable is often cut short by the idea that legalisation solely in the Netherlands is impossible because international treaties stand in the way. This is a misconception. First of all, the Netherlands could withdraw from these treaties. But this is not even necessary. The drug treaties which the Netherlands have entered into constitute no impediment to the "expediency principle" that applies in our country.

This principle entails that the Public Prosecution Department is not obliged to prosecute criminal offences if it does not deem such to be "expedient" or useful. On the basis of this principle the Dutch policy of tolerating the sale and use of soft drugs has been able to develop. At first this policy caused opposition. However, in recent years the appreciation is growing, and in some countries even further steps have been taken.

Some recent developments:

Germany: The Constitutional Court decided on April 28, 1994 that the possession of soft drugs for personal use need no longer be prosecuted. Since then, most German regional governments now tolerate the sale and use of soft drugs. Colombia: on May 5, 1994 the Court of Constitutional Law passed the motion that possession of cannabis and cocaine are considered, in constitutional terms, to be protected by the right to individual freedom.

Switzerland: several cities, including Zurich, dispense hard drugs to addicts already for a year.

France: The advisory commission-Henrion, set up by the former government under president Mitterand, advised to depenalize the use of soft drugs and to do the same at a later stage with the production and sale. The largest possible minority of this committee was in favour of applying the same to hard drugs.

Secretary-general Raymond Kendall from Interpol has proposed to no longer penalise the possession of drugs. He considers drugs to be a health and social problem rather than a judicial issue.

In our opinion the most "expedient" way of regulating the drug problem in the short term is to expand the application of the present "expediency principle" to all drugs in accordance with the system that will be explained in the following chapters. It is remarkable that our system is more in keeping with the treaties than the present Dutch policy of tolerance.

The umbrella treaty concerning drugs is the Single Convention on Narcotic Drugs of New York, signed in 1961. It received its name because it encompassed all miscellaneous agreements up until that time. Later treaties, such as the Protocol of Geneva of 1972 and the Convention on drug and psychotropic substances signed in Vienna in 1988, do not infringe on its scope and purpose.

The preamble of the "Single Convention" states that the members are committed to combat the evil of drug addiction (.."Conscious of their duty to prevent and combat this evil").

Article 22 reads: "Whenever the prevailing conditions in the country or a territory of a Party render the prohibition of the cultivation of the opium poppy, the coca bush or the cannabis plant the most suitable measure, in its opinion, for protecting the public health and welfare and preventing the diversion of drugs into the illicit traffic, the Party concerned shall prohibit cultivation".

In other words one could read this as follows: if, on the other hand, a country considers legalisation to be a better option for protecting the public health and the fight against the illegal drug trade, that country need not ban production. In such a case, what should be done is stated in article 23 on poppies (= opium and heroin): the country should then establish a National Opium agency.

Art. 23 sub 1: A Party that permits the cultivation of the opium poppy for the production of opium shall establish, if it has not already done so, and maintain, one or more government agencies (hereafter in this article referred to as the Agency) to carry out the functions required under this article.

Art. 23 sub 2: Each such Party shall apply the following provisions to the cultivation of the opium poppy for the production of opium and to opium:

a: The agency shall designate the areas in which, and the plots of land on which, cultivation of the opium poppy for the purpose of producing opium shall be permitted.

b: Only cultivators licensed by the Agency shall be authorised to engage in such cultivation.

c: (....).

d: All cultivators of the opium poppy shall be required to deliver their total crops of opium to the Agency (....).

e: The Agency shall, in respect of opium, have the exclusive right of importing, exporting, wholesale, trading and maintaining stocks other than those held by manufacturers of opium alkaloids, medicinal opium, or opium preparations (....).

Article 28 stipulates the same for cannabis (marihuana and hash). Similar regulations apply to cocaine and other drugs. The semi-legal production and distribution of soft drugs that has existed in the Netherlands already for more than 20 years does not comply with the condition that there should be a government controlled agency. Our proposal includes the foundation of such a national drug agency.

Legalisation will serve public health in a much better way, and it makes it easier for the police and the public prosecutions department to fight the remaining drug trade, which will mainly be export.

Withdrawal from international agreements or negotiations with treaty partners are therefore not necessary. When the Dutch approach receives international support and recognition, one could consider to amend the treaties to legalise the regulation. Only then will legalisation become formal. Since with our plan drugs would become legal in actual fact, we further refer to this "actual legalisation" as simply: legalisation.

Drug prohibition is increasingly under attack internationally. If the Netherlands switch to legalisation, other countries will not necessarily disapprove. It may well be that amazement abroad will change into interest, just as has happened with the Dutch policy on soft drugs.

There seems to be enough room in international politics for legalisation within the Netherlands, provided that: illegal export from the Netherlands could be fought at least as strongly as at present, and legalisation in the Netherlands should not become a magnet for foreign drug tourists.

If the conditions can be fulfilled, the Netherlands will also comply with the 1990 Schengen Agreement, which leaves the way in which drugs are dealt with to each participating country, but also demands that the policies of the other countries should not be impeded. Our plan satisfies both conditions, as we will show in the following chapters. Our proposal builds on the existing distinction between the distribution of soft drugs and that of other drugs.

Thanks to Mario Lap for the above