Administrative and Legal Support of Food Security under the Restrictive Regime for Cultivating Narcotic-Containing Plants: From Prohibition to Incentivising Economic and Investment Activity
Author(s): Pavlo Liutikov*, Liudmyla Nikolenko, Yaroslav Sydorov, Maksym Korniienko, Vladyslav Lipynskyi
Abstract
Aim: The article examines the administrative and legal regime for cultivating narcotic-containing plants in Ukraine as an instrument that simultaneously serves two public interests: Countering the illicit trafficking of narcotic drugs and ensuring food security. It is substantiated that this regime has been constructed one-sidedly: The prohibitive, licensing and control components are regulated in detail at the level of a law and are reinforced by administrative liability, while nothing on the other side of the balance encourages business entities to invest in or to expand such activity. As a result, the food potential of plants that fall within the schedules (oil poppy, hemp for industrial purposes) remains unrealised, while the vacated niche is filled by the illicit sector.
Methods: The study applies the formal-legal method (doctrinal analysis of the law of Ukraine “on narcotic drugs, psychotropic substances and precursors” as amended in 2023, the code of Ukraine on administrative offences, the schedules and quota acts of the cabinet of ministers, and the departmental act establishing the register of industrial hemp producers); the comparative-legal method (Ukraine against regulation European Union (EU) 2021/2115 and the framework of the 1961 and 1988 United Nations (UN) conventions); the systemic method, which allowed the cultivation regime to be considered as an integral object; the logico-semantic method for delimiting the notions of cultivation, quota, restriction and incentive; analysis and synthesis; and legal modelling for the authors’ own construction.
Results: An asymmetry between the restrictive and the incentivising components of the regime has been established. It is shown that food security, as the object of administrative and legal support, has no statutory foundation in Ukraine: The relevant draft law was adopted by parliament in 2011, vetoed, and rejected in 2012, so that the object is defined only by a government act. A conflict has been identified between the threshold of tetrahydrocannabinol fixed by the law and that retained by the subordinate schedules. Two different quota models operating within a single schedule have been distinguished. A divergence has been found between the declarative principle of registration prescribed by the law and the inter-register verification model actually implemented by the departmental act. The authors substantiate the construction “restriction plus compensatory incentive”.
Conclusion: The lawfulness of administrative restrictions on economic activity in this sphere should be assessed not only by the legitimacy of the aim and the proportionality of the measure, but also by the presence of a corresponding compensatory instrument opened by the very same legal fact that gives rise to the restriction. Directions for amending the legislation of Ukraine are proposed.