Session 10 - Cannabis
c) Drug Policy in Belgium
Christophe Marchand
Rue Dejoncker 51/61, Bruxelles 1060, Belgium E-mail: christophe.marchand@khp.aton.be
Is regulation and legalisation of cannabis possible within the framework of the international conventions? On the matter of cannabis, there are two very important conventions. One is the Single Convention of 1961 and the other is the Vienna Convention of 1988. In the strictest sense, it is quite obvious, reading these conventions, that it is not permitted to legalise drugs. If you interpret the conventions, it can be argued that drugs can be legalised (See literature on the matter). I think there are no risks for a government in changing its laws and legalising marijuana (that is organizing the culture, production, business, sale and detention) but there must be a political will to change the laws and to face the prohibited politics of the United States. The possible sanctions by the International Narcotics Control Board are only symbolic.
Cannabis policy in Belgium
In Belgium the use of cannabis is tolerated. For example, a man was caught on the highway between the Netherlands and Belgium with fifteen grams of cannabis. Later, he was also caught in his workplace (he is a cook) with five grams of cannabis and the police were informed. He and his boss were interviewed. There was an inquiry and the man stated that he was consuming cannabis at home for his own pleasure; he was not dealing anything and was happy in his life with no problems. He also said in a later interview that he had quit his habit so the prosecutor ended the lawsuit against him. Therefore, he was never sued and he never came before a court.
There is tolerance if a person says that he/she will quit their habit but otherwise there could be problems. A user who has been caught will be asked by the police to give urine tests and be interviewed a few times. If the habit is continued, the user may go before a court. In another case, a man refused a urine test saying that he was continuing his habit and he is now before the court in Brussels. His defence was to claim a violation of his privacy with arguments based on the European Convention of Human Rights. It is doubtful that he will succeed in Belgium but he might in the court of Strasbourg.
The situation of tolerance in Belgium was put into force by an act of the Ministry of Justice. This Act states that if someone is caught with, for example, fifteen grams of cannabis and claims that he only tried it once, he will not be prosecuted. Many criticisms can be made about this situation. The decision to sue someone is in the hands of a prosecutor and the prosecutor will do so only on really arbitrary motives. For example, if you are in poor social circumstances or are unemployed, you will be sued, but if you have a good job or come from a good family then you will not have any problems. One of the basic principals of the French Revolution was that the law must be applied in the same way to everyone, and we really must stand on that position of legality. Whether you are sued or not before a tribunal should not depend on social characteristics.
Alcohol policy in Belgium
In Belgium there have been major developments from the 19th century to the 20th century in the regulation of alcohol. This is because in 1887, when a few socialists came to parliament, they asked for a law to be issued to protect workers from alcohol use. This is the Law of VANDEVELDE. A few recommendations were issued on the use of alcohol, such as the prohibition of drinking alcohol in public. Then there was an evolution in 1919, when two more repressive laws were passed, including the prohibition of all alcohol consumption and of all alcohol sales in public premises. That meant the end of some bars in Belgium. The law also said that you could only buy two litres of alcohol and no more. It is interesting that only spirits were prohibited but wine and beer was not.
There was also a very hard tax policy in the sense that all the taxes were raised four times higher than before. It is interesting that included in the drug law are the exceptions to the basic principals of criminal law, for example searches. Searching is much easier to do in the case of drug law than in any other criminal case. It was the same under this law of 1919: searches in alcohol cases were easier. There were other conditions as well. For example, only a certain category of person could run a bar where beer and wine could be used. In 1939 and 1953 there were new, even more repressive laws against the use of alcohol. Through this continuing evolution of criminal laws, the government and the parliament were trying to change the social use of a drug (alcohol).
In 1983 a very famous Conservative Minister in Belgium, linked to the basic principal of liberalism (GOL), proposed a law to end the prohibition of alcohol. His argument was that it is not possible to have a law that will not in practice be put into force. That is the same as with cannabis. He also said that it is not possible to stop the use of spirits, and asked why it was prohibited when the use of beer and wine was not. He said there was no risk that the legalisation of alcohol would increase alcoholism, criminality or car accidents, and that it was a good opportunity for the government to add taxes. The law of 1919 was a historical monument, but gave the impression that the government was combating alcoholism by criminal law when in reality it was not. Therefore the law was changed in order to let the government combat the abuse of alcohol by means other than criminal law.
Current issues
Since June 1999, Belgium has had a new government called the Rainbow Coalition. It is a coalition of the Green party, the Liberal Conservatives and the Socialists. A contract between all parties was signed, which raises the question of these drugs. Now, legalisation and regulation of cannabis have been put on the agenda. As it is the first time in 50 years that the Christian parties are not in government, there is an opportunity to make some changes to the laws. For example, now parliament is discussing euthanasia, which is a very important moral issue. The problem of drugs is also linked to euthanasia in the sense that it is the freedom of the person, the freedom of the individual and the liberty of an individual to use the drug that he chooses. Finally, there are now proposals from the Green Party, the Liberal Party and the Socialist Party to decriminalize the use of cannabis and to regulate it.
References
On the Vienna Convention of 1988:
SPROULE DW, (1989) The UN Drug Trafficking Convention: An Ambitious Step. Can.Yearbook.Int.L., Vol.XXVII, pp. 263-293
PATEL Faiza (1990) Crime Without Frontiers: a Proposal for an International Narcotics Court. Journ.Int.L.&P, Vol.22, pp.709-747
SCHUTTE Julian JE (1991) Extradition for Drug Offences: New Developments under the U.N. Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. Rev.Int.Dr.Pé, Vol.62, pp. 135-157
DEL RIO FERNANDEZ Lorenzo Jesus (1993) Tráfico de drogas: delito internacional. Revista General de Derecho, n°588, pp.8081-8085
LOPEZ PARDO Dorte (1995) Narcotic drugs. United Nations: Law, Policies and Practice, Vol.2, n°97, §13.
On the Single Convention of 1961:
LANDE Adolphe (1956) La codification du droit international des stupéfiants. AFDI, II, pp.557-559
WADDELL Ian G (1970) International Narcotics Control. Am.J.Int.Law, n°2, pp.311-315
VIGNES Claude-Henri (1972) Les modifications apportées à l’organe international de contrôle par les amendements à la convention unique sur les stupéfiants. AFDI, p.629
BETTATI Mario (1974) Le contrôle international des stupéfiants. Rev.Gén.Dr.Int.Public, I, pp. 174-180
CABALLERO Francis op.cit., pp.38-49.
On the interpretation of the Single Convention :
POLAK Freek and LAP Mario, A view on the Board. The International Journal of Drug Policy, vol. 5, n°3, pp. 147-148
LAP Mario (1992) Concept Cannabiswet met bijbehorende Memorie van Toelichting. NIAD [Netherlands Institute on Alcohol and Drugs] .
LAP Mario (1993) Een vergunning-enstelsel voor cannabis. Justitiële Verkenningen, 19, 111-118.
GILMOUR Glenn, The International Covenants "Prohibiting" Drug Activities. http://fox.nstn.ca/-eoscapel/cfdp/gilmour.html.
GUILLAIN Christine et MARCHAND Christophe (1998) La réglementation du cannabis à la lumière des conventions internationales in Het drugbeleid in Belgïe : actuele ontwikkelingen, Bruxelles-Antwerpen-Apeldoorn, Bruylant-Maklu, pp.299-318.
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