Treating the ‘Personal’ as Private: Contextualising the Normative Framework of Cannabis Clubs in Spain within a ‘Global Model of Constitutional Rights’

Abstract

This article provides an analysis of the normative framework of Spanish cannabis clubs with the aim of contextualising it within a growing body of comparative constitutional law that recognises legal obstructions to personal drug consumption as intrusions on the right to privacy. Article 3(2) of the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988 relieves signatory states from the Article’s obligation to criminalise drug possession and cultivation for ‘personal consumption’ where doing so would conflict with the constitution or the basic concepts of their legal system. Spain appears to have been the only country in which the legislature (as opposed to the judiciary) has relied on Article 3(2) in its decision not to criminalise conduct for personal consumption. In doing so the government omitted to specify the constitutional ground relied upon, and the scope of the conduct encapsulated in its drug offence is open to judicial interpretation. The Spanish judiciary has had to consider the legal implications of collective consumption and cultivation. As well as operating in a grey area of domestic law, Spain’s cannabis clubs straddle the blurred boundary in international and European instruments between ‘personal consumption’ and ‘drug trafficking’. This article argues that the ambiguity surrounding the meaning of ‘personal consumption’ is best decided within the framework of the ‘global model of constitutional rights’, particularly given the acknowledgement given to the engagement of constitutional principles by the term in the 1988 Convention. This article includes an analysis of all constitutional decisions on the relationship between human rights and criminal laws on recreational drug use from around the world.

Keywords: privacy; autonomy; public health; cannabis clubs; personal consumption; international drug control