The cannabis conundrum

By Bill Wirtz

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According to new information, the government is not pursuing a full legalisation of cannabis. As ministries in Luxembourg switch into "no comment" mode on the reasons for a potential policy reversal, we found the legal hurdles that can stand in the way of legalisation.

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The coalition programme in 2018 came as a bombshell on the harm reduction and drug policy front. A full legalisation of cannabis, celebrated by legalisation advocates, while criticised by its opponents. A power move that made that shifted international attention to Luxembourg, as no European country treats cannabis as a legal product. A number of European countries are often named as semi-legal markets for cannabis. The Netherlands most famously decriminalised the possession of cannabis in the 1970s, tolerates the persistent operation of the so-called "coffee shops", while production remains illegal. Portugal and the Czech Republic have also decriminalised possession, yet the acquisition of the drug remains on the illicit market. Luxembourg’s neighbour Belgium has decriminalised the possession of cannabis in small quantities.

The fact that Luxembourg’s legalisation efforts could upset neighbouring countries was already in the talking points of former Health minister Etienne Schneider (LSAP), the member of government first tasked with the project. The regulatory proposal that Schneider worked on never made it through the government council, and has therefore never been officially confirmed. According to Radio 100,7 information, the government is now considering a reversal of its position, allowing only for home-grown cannabis, not for legal sales. In an interview on the same public radio station, Health minister Paulette Lenert confirmed that the fear of reprisal from neighbouring countries has played a role in its "looking for alternatives". Lenert hinted at the border closures during the COVID-19 pandemic in her reasoning.

The big legal question

Since the news leak, a number of responsible ministries have switched on the "no comment" mode towards journalists. Both the Health and the Justice ministry told Journal that there will be no further statements made until the respective minister will make new announcements. The date of those announcements remains unknown. Journal has attempted to reach out to national coordinator for drug policy Alain Origer to get further information, but was told through a Health ministry spokesperson that he is "not available".

One question that remains unanswered is the following: is it true that "legal hurdles", as the Radio 100,7 leak suggests, stand in the way of full legalisation in Luxembourg. Health minister Paulette Lenert hinted at such obstacles, but so far none of the ministries have been able to communicate which exact hurdles those are.

Journal spoke to a legal expert close to the issue, who asked to remain anonymous. The expert points to three United Nations conventions which could be an issue.

UN conventions related to cannabis

  • "Cannabis and cannabis resin and extracts and tinctures of cannabis" are considered a Schedule I drug in the convention. The same schedule applies to cocaine, fentanyl, heroin, opium, or methadone. It therefore prohibits the production of supply of cannabis.

  • This agreement controlled and prohibited new substances not included in the 1961 convention, yet also lists tetrahydrocannabinol (THC), the psycho-active substance in the cannabis plants which has known effect of getting users "high".

  • The third major drug control treaties provide an enforcement mechanism for the 1961 convention, cementing in a prohibition of cannabis.

The legal expert Journal spoke to points to a number of issues with the approach of halting legalisation due to these conventions: "These documents have been around for 50 years, you would think that the government had been aware of them in 2018. We also know that they won’t be changed anytime soon – you can’t convince Russia and China to change course on narcotics just like that." That said, it isn’t just the sudden discovery of legal restrictions that pose a problem, they say: "Uruguay and Canada both legalised cannabis without considering UN conventions. You see, there is no automatic penalty mechanism in the United Nations that applies if you violate a narcotics convention."

On that note, human rights groups have argued that the UN conventions aren’t absolute in their prohibition of cannabis. In a 2018 joint report, WOLA (Advocacy for Human Rights in America), the Transnational Institute, and Global Drug Policy Observatory (GdPO) write:

"[…] unless more than one-third of the treaty parties would object, it could be legitimate for a country to reserve the right to allow non-medical uses of cannabis."

"If you are looking for problems, you will find them and if you are looking for solutions, you will also find them, as is the case with the Dutch."

Sven Clement, MP for the Pirate Party

It isn’t the first time that Luxembourg had to deal with United Nations bodies as a result of its drug policy. Former Health minister and chairman of the Luxembourgish Parliament’s health committee Mars Di Bartolomeo (LSAP) recalls interacting with an UN envoy in the Grand-Duchy: "They came to Luxembourg after we opened the "Fixerstuff" [editor’s note: this is Luxembourg’s addiction treatment centre which provides needle exchanges and has methadone programmes for heroin addicts] and said we’d be in hot water. My position back then was, and is today, that I’d rather upset the UN than except the adverse effects of not having these facilities."

Then there’s the European Union angle. When contacted by Journal, the European Commission’s Home Affairs department confirmed that the Luxembourgish government has been in contact with the EU to receive guidance on the relevant EU rules and international framework. The department also points to Council Framework Decision 2004/757/JHA, which prohibits the cultivation of cannabis plants except in case of personal use. The decision bases its scheduling decisions on the 1961 UN convention, which includes cannabis, however could provide for exceptions for home-grown uses for personal consumption, which is why the government can still eye that option.

What is apparent for all of these conventions and international agreements is that they are not new. All relevant restrictions existed way before the government put the legalisation of cannabis into the 2018 coalition programme, and also before former Health minister Etienne Schneider worked on a legalisation plan. It remains mysterious why the government now walks back the talk. We contacted both the Justice and the Health ministries of Luxembourg to find out whether they commissioned legal opinions in Luxembourg, but did not receive a response.

The reactions

"If you are looking for problems, you will find them and if you are looking for solutions, you will also find them, as is the case with the Dutch", says Sven Clement, member of parliament for the Pirate Party. He is amongst those who have criticised the government for what appears to be signs of policy reversal.

"Jonk Demokraten" (Young Democrats, a youth organisation close to the governing Democratic Party) president Michael Agostini is also amongst those that see the news about a possible retraction from legalisation plans with a critical eye. He has been instrumental in compiling a cannabis alliance of youth parties supporting legalisation, and says that he will have further meetings with alliance members to discuss further steps. "My big fear is that if we act to late, then a possibly differently compiled government coalition in the future could overturn every concept of legalising cannabis", says Agostini. The CSV (Christian-Social People’s Party) holds the most seats in Parliament and opposes the legalisation of cannabis. Time is indeed running out: if the government were to choose to implement legislation, then education drug awareness programmes, on top of the entire legislative and institutional framework, would need to be established before Parliament is up for re-election. Agostini believes that it is doable if all relevant parties work together, but "it is clear that the first gram of cannabis would not be sold in this legislative period".

Nathalie Oberweis, opposition MP for "déi Lénk" ("the Left") says that her party is disappointed with the news coming from the government. "This also raises questions about the innerworkings of the coalition as such, if big promises are not implemented", she says. "A legal cannabis market would calm down the illicit market in Luxembourg, especially since we keep talking about bringing more order into problematic areas in the capital city", continues the left-wing MP.

Dutch experiences

Tom Bart is an addiction and substance use expert at Jellinek, an addiction treatment centre, in Amsterdam. Working in the prevention department of Jellinek, he gets in contact with people affected by substance abuse, and works on the scene by going to the areas where drug use occurs, such as clubs or festivals. "At the young age, before 18, we really try to prevent people from using cannabis", says Bart, who points out that in their work in the Netherlands, cannabis is the second largest problem factor of addiction, after alcohol. He gives example of youth that get passive or stop going to school, factors that are beyond the realm of just addiction.

© Nazlıcan Kanmaz

Tom Bart

"For those at younger ages, we try to teach their parents about cannabis use. We don’t go in front of a classroom and tell 30 young adults about cannabis use, because that is not effective. You might have two kids in the classroom that use cannabis, and they won’t be interested, while within the other 28 there might be those who get interested in the substance because of our talk", explains the addiction expert.

Tom Bart on cannabis legalisation

* in English

Tom Bart’s advice to those dealing with a cannabis addiction is that conversation is key: "As always with addiction, the first step is talking about it to someone. It doesn’t have to be a healthcare professional; it can also be a friend or colleague. There is always a lot of shame involved with being addicted or not being able to control your own use, and when you’re ashamed you’re going to lie about it and tell yourself stories to make yourself feel better." Working your way up in the conversation is key, from your own social circle to your medical doctor, up to professionals you can help treat it as a health problem, not a legal problem.

One striking effect that the discussion with an addiction expert in the Netherlands has, is that it shows to what extent the country has matured in its approach to substance abuse; experience that has come with long years of decriminalisation and prevention work. Before Luxembourg could come anything close to that, it first needs to solve the legal conundrum that cannabis policy seems to provoke.