The Netherlands pioneered the experimentation with depenalization strategies in 1976 when it formalized the use of the expediency principle to guide the enforcement of drug prohibitions. Based on this principle, Dutch prosecutors are instructed not to bring charges when cannabis use offenses take place within the user’s home or within the so-called coffee shops, where cannabis can be openly consumed and purchased. From the 1990s onward, many national and subnational jurisdictions introduced cautioning and diversion schemes to deal with drug use offenses. Cautioning schemes authorize police officers to avoid arresting suspected drug offenders under certain circumstances. Instead, the cautioning schemes require them to issue a written warning of the possible consequences of the illegal behavior. Diversion schemes, which may operate at the pre-trial, pre-sentence, or post-conviction stages of the legal process, are intended to shift offenders from the criminal justice system and its carceral institutions to other channels of legal intervention. When applied before the sentencing stage, such measures may require the offender to participate in certain treatment and education programs as part of the bail conditions. After the sentencing stage, diversion measures may subject a convicted offender to community-based or rehabilitative measures . The widespread transnational diffusion of depenalization regimes is enabled by the structural mismatch between the actors shaping the formal rules of the international drug control system and those implementing these rules in national and local contexts. Rather, it has evolved through uncoordinated processes of institutional isomorphism, grow room reflecting converging professional concerns regarding the complexities of implementing criminal prohibitions that are extensively violated by ordinary citizens and that do not reflect widespread social disapprobation of the targeted activity.
From the perspectives of ground-level enforcement officials and more senior bureaucratic elites, the implementation of cannabis prohibitions raised pragmatic concerns regarding the limited effectiveness of conventional penal measures and the immense costs that such efforts entailed. In democratic systems committed to the principle of legalism, it seems natural to expect that schemes of depenalization would translate into de jure changes in the statutory definitions governing processes of criminalization. The international drug conventions place constraints on the ability of national legislatures to introduce such reforms. However, the treaties also contain textual ambiguities that provide leeway for negotiating the scope and ambit of such prohibitions. The rise of the medical cannabis movement illustrates the unfolding of such processes of normative contestation. The movement began to gain ground in the early 1990s, focusing its efforts on promoting ballot initiatives at the municipal and state levels in the US. Within the next two decades, it effectively initiated the enactment of laws decriminalizing the medical use of marijuana in thirty-one states across the US and inspired norm entrepreneurs in dozens of other countries to campaign for the adoption of similar models. Countries adopting medical cannabis laws utilize the latitude allowed by the UN drug conventions regarding the definition of the term “medical and scientific purposes.” Importantly, they challenge the powerful view that marijuana has no demonstrated medical use. In this regard, the medical cannabis movement has demonstrated the effectiveness of bottom-up legal mobilization strategies operating at the subnational level to contest authoritative interpretations of transnational prohibition norms produced by powerful global actors.
Building on the successes of the medical marijuana reform movement, advocacy networks in various countries have campaigned for the enactment of more radical models of decriminalizing and even legalizing the recreational use of cannabis. The seeds of this development were sown in the 1990s when European countries increased the thresholds of the amounts of cannabis possession exempted from criminal responsibility. Portugal, for example, adopted threshold parameters based on “the quantity required for an average individual consumption during a period of ten days.” Whereas Portugal adopted this policy as part of a comprehensive redesign of its drug laws on the basis of harm reduction principles, in other countries, these steps toward legalizing cannabis use were stimulated by court rulings reviewing the constitutionality of cannabis prohibitions. For example, in Argentina, a 2009 ruling by the Supreme Court struck down Article 14 of the country’s drug control legislation, which punished the possession of small amounts of cannabis with prison sentences ranging from one month to two years. The Court stated that the possession of cannabis is protected by Article 19 of Argentina’s Constitution, which states that “private actions that in no way offend public order or morality, nor are detrimental to a third party, are reserved for God and are beyond the authority of legislators.” Recent developments in Canada and nine US states signify the growing momentum of the trend toward the legalization of recreational uses of cannabis and the development of more complex regulatory models to govern legal cannabis markets. In different ways, these jurisdictions grant licenses to professional farmers and pharmacies to produce and to sell cannabis commercially and exempt individuals from criminal responsibility for noncommercial uses.
The trend toward liberalizing cannabis prohibitions illustrates the recursive nature of transnational processes of legal change. The networks of actors participating in these processes—comprised of grassroots activists, legislatures, bureaucratic elites, criminal justice actors, scientists, journalists, and public health officials—created new regulatory models that gradually transformed the application of cannabis prohibition norms in various jurisdictions. These actors invoked the indeterminacy of treaty provisions, contested the framing of cannabis use as indicative of a moral malaise, and highlighted the diverse ways in which the enforcement of cannabis prohibitions produces social harms that are severer than those generated by cannabis use. They also utilized the space for norm-making provided by the mismatch between the institutions and actors that formulate globalnorms and those assigned with the actual implementation of these norms in national and sub-national settings. The success of these campaigns warrants a reflection on the conditions under which local and national acts of contesting TLOs can reshape the agenda of global actors invested in preserving the current normative settlements. The following section focuses on this question.The rapid and widespread transnational diffusion of new models of decriminalizing, depenalizing or legalizing the use of marijuana serves as a product and a catalyst of the declining capacity of the cannabis prohibition TLO to shape the policy choices of criminal lawmakers and the routine practices of enforcement officials. However, to what extent do these reforms change the agendas of the global actors that play key roles in shaping and maintaining the normative and institutional structures of this TLO? Faced with the global spread of cannabis liberalization reforms, the INCB has positioned itself as the most steadfast defender of the normative expectancies of the cannabis prohibition TLO. In its annual reports, the Board contested the legitimacy of the legal interpretations underpinning states’ engagement with decriminalization, depenalization, curing cannabis and legalization initiatives. The Board repeatedly expressed its concern that the introduction of civil sanctions for possession offenses was sending the wrong signal, downplaying the health risks of marijuana use. It criticized medical cannabis reforms and questioned the scientific basis on which they are premised. Most recently, the Board condemned Uruguay and Canada for adopting legalization schemes, stating that such reforms constituted clear breaches of the international conventions. The literature examining the roles of naming and shaming mechanisms in international politics observes that most countries are inclined to bring their laws into formal compliance with international standards to avoid being stigmatized as “deviant states.” The efforts of the INCB to achieve such influence by condemning countries deviating from the prohibitionist expectancies of the international drug conventions failed to generate such adaptive responses. Some countries have practically ignored the Board’s proposed interpretation of the international obligations set by the conventions. Others have argued that the Board’s interpretive approach was too narrow and relied on selective use of the available evidence-base concerning the medical uses of cannabis. Still others contended that the Board was exceeding its mandate when it adopted a hostile stance toward legitimate policy choices of sovereign states. The limited impact of the Board’s attempts to delegitimize the adoption of non-punitive models of cannabis regulation provides important insights into the conditions under which naming and shaming strategies can succeed. One reason for this limited impact is that some of the central countries pioneering the experimentation with decriminalization and legalization schemes are not particularly vulnerable to economic and reputational pressures.
Supporters of cannabis liberalization reforms across Europe and North America justify these policies on the grounds that they are needed to reconcile drug policies with fundamental human rights values as well as with human development concerns. In this polemical context, it is unsurprising that the INCB, which has long failed to restrain the human rights abuses inflicted in the name of the war on drugs, has not succeeded in harnessing transnational civil society actors to support its line of attack on the perceived departures from the settled interpretations of the international drug conventions. Whereas the INCB has remained unambiguously committed to the task of defending the normative settlements of the cannabis prohibition TLO, the approach taken by the US has been marked by ambivalence. President Barack Obama’s administration adopted the ambiguous position of respecting the decisions of US states legalizing the medical and recreational use of marijuana while continuing to condemn steps toward legalization in Latin American and Caribbean countries. Responding to shifts in national public opinion, the administration set out lenient guidelines for the federal prosecution of marijuana users in states that had legalized its medical and recreational uses. It thereby allowed legalized drug markets to take roots in Colorado and Washington, and subsequently in other states. Like other national governments, the US federal government invoked its domestic constitutional principles to argue that its policies are in compliance with the international standards. However, during the same period, the US continued to apply its strict punitive approach to evaluating the compliance of other countries with the UN drug conventions. The annual certification process continues to include assessments of the extent to which the seventeen countries currently identified as “drug majors” are willing to eradicate the cultivation of cannabis and to penalize its growers and sellers. With a majority of Americans supporting the legalization of marijuana 73 and a majority of US states already implementing decriminalization schemes for medical marijuana, lawmakers in the House and Senate are facing increasing pressure to end the federal ban on cannabis. Despite efforts by Attorney General Jeff Sessions to revive the zero-tolerance approach of the federal government, President Donald J. Trump has recently expressed his intention to support such reforms. It is too early to predict whether and when such a change will take place or how it will impact the federal government’s foreign policy stance on the issue of cannabis legalization. However, as long as the US adheres to this “do as I say, not as I do” message, its ambivalent posture enables further steps toward the unsettling of cannabis prohibition norms. Nevertheless, it is important to note that despite its declining regulatory effectiveness, the cannabis prohibition TLO continues to exert considerable influence on the development of drug policies at the international, regional, national, and local levels. In this context, it is notable that countries that have liberalized their cannabis laws emphasize their commitment to remain bound by the confines of the current treaty regimes of the international drug control system. Remarkably, the extensive recognition of the severe failures and counterproductive effects of the cannabis prohibition TLO has not generated viable political efforts to amend the international treaties underpinning its operation. To a considerable extent, the reluctance to renegotiate the treaty norms governing cannabis policies stems from the notion that the cannabis prohibition TLO is embedded within the mega-TLO of the international narcotic control system. This serves as a powerful mechanism of issue linkage, leading countries that support cannabis liberalization reforms to avoid initiating formal treaty amendments out of concern that such actions might destabilize the settled norms prevailing in other issue-areas of narcotic control . The fact that the UN drug conventions regulate the global trade of both the illicit and licit uses of drugs, including substances on the World Health Organization’s list of essential medicines, further escalates the stakes in renegotiating the terms of these treaties. In addition, the reputational costs of defecting from UN crime suppression treaties might be higher than those suffered by persistent objectors in other areas of public international law.