The government’s risky approach to international legal obstacles puts the entire project in jeopardy

28 October 2022

Germany’s current interpretative approach puts the fate of the entire project for cannabis regulation on very thin ice. But there is still time to change course, and legally sound and politically viable alternative options are available.

The German government has released its ‘Eckpunktepapier’, a concept note laying out the key points to shape the regulation of the recreational cannabis market.1 Presenting the key points at a press conference this week, Health Minister Lauterbach made clear that it had not been easy to reach agreement within the ‘Ampel’ coalition and between the involved ministries. Clearly one of the trickiest issues has been how to deal with the legal hurdles of the UN drug treaties and EU law. The Minister presented what he called the ‘Interpretationslösung’ as the government’s Plan A, which will be submitted to the European Commission in hopes of a green light that would allow the legislation to proceed. But if the EC rejects Germany’s ‘interpretative solution’, there will be no legal regulation unless another legal accommodation can be negotiated. Regarding a Plan B, the Eckpunkte vaguely mention the possibility that the proposed legislation “can be accompanied by Germany’s advocacy for certain amendments/updates at EU and international law level”.2

Unfortunately, Germany’s Plan A approach risks bringing the whole regulation project onto legally very thin ice, for several reasons. Let’s make clear from the outset that TNI fully supports the intention to legally regulate the cannabis market, as we have done in the case of Uruguay, Canada, Mexico, Malta and now also Colombia. TNI has been working for several years now with a group of international lawyers, treaty experts and government officials to explore the most viable options to accommodate the legal regulation of cannabis markets under international law. With due respect for basic principles of international law, and staying within the realm of faithful treaty interpretation, we have laid out in detail the legal tensions and the available compliance options.3 The ‘Interpretationslösung’ now proposed by Germany, does not appear on the menu of viable solutions elaborated by the group of treaty experts we convened, as it can be easily contested and dismissed on legal grounds.

According to the Eckpunkte, the government seems to think that it can get around the legal obstacles of the UN drug control conventions and EU law simply by issuing an ‘interpretative declaration’ declaring that the planned regulation is compatible with Germany’s international legal obligations. Reference is made to the German legal system, the 1994 ruling of the Constitutional Court, and a previous interpretative declaration Germany made in 1993 upon ratification of the 1988 Convention. All those, however, only offer legal escape from the criminalisation of personal use-related offences: possession, cultivation or purchase for personal consumption. Decriminalisation of such offences can thus soundly be justified based on those references, but they do not offer any legal justification for state-controlled production, distribution and sale as the new regulation intends to cover. Germany’s previous declaration was specifically made under Article 3.2 of the 1988 Convention, limited to personal use offences.4 All other offences, falling under Article 3.1, are not subject to the constitutional principles or the legal system of a treaty party.

The Eckpunkte do not offer any further explanation about how the government considers the referenced exemptions to be applicable to a fully legal market, including licensed production and sales, or how they would address the restrictions imposed by the general obligation of the 1961 Single Convention on Narcotic Drugs to limit the controlled drugs, including cannabis, to medical, scientific and certain industrial purposes. It just announces “issuing an interpretative declaration to the other parties to the international conventions and the international drug control bodies, according to which it declares this implementation of the coalition agreement—under certain narrow conditions of state regulation and improvement of standards in the areas of health and youth protection as well as combating illicit drug trafficking—to be compatible with the purpose and the legal requirements of the conventions”.

Other arguments mentioned in the Eckpunkte, like health protection and crime prevention, are good reasons for moving from failed prohibition to legal regulation. Arguably strict legal regulation can better protect the health and welfare of humankind, the stated preambular purpose of the conventions. But appealing to the object and purpose of the treaties by itself doesn’t immediately offer a legal escape from the specific obligations that parties signed up to. The conventions not only have goals but also proscribe the way to reach them, namely limiting drugs to medical and scientific purposes, and criminalising production and sale for other purposes, and parties to the drugs conventions commit themselves to implementing these obligations. In his presentation, Minister Lauterbach only referred to the drug conventions’ overall aims to justify the government’s ‘Interpretationslösung’. But to make that work, as the Eckpunkte acknowledge, requires a sound argumentation that the new policy is not only “compatible with the purpose” but also with “the legal requirements of the conventions”. That is where the real problem lies and where an interpretation based on the German legal system, the Constitutional Court ruling and the 1988 interpretative declaration does not offer any flexibility or exemption.

Curiously, the 1961 Single Convention is not mentioned at all in the Eckpunkte, but its general obligation is subsequently used to argue that “international trade in cannabis for recreational purposes is not possible” because the existing international framework “only allows trade of drugs for medical or scientific purposes and this only under strict conditions”. The treaties, however, impose exactly the same restriction on domestic production and internal trade. International trade is not more prohibited than a closed national market for recreational purposes, it just requires more paperwork. Once countries have found a way to genuinely reconcile their treaty obligations with a legal regulation of their cannabis markets, nothing would prevent them from entering in a mutual trade agreement. They only need to have the proper controls in place to ensure that the product does not end up in countries where it remains illegal. “According to a preliminary assessment”, however, the Eckpunkte conclude that “national demand would have to be met by German production”.

The previously leaked September draft of the Eckpunkte mentioned the options of outdoor, indoor and greenhouse cultivation, and included cautionary wording about the “particularly high carbon footprint” of closed indoor grow facilities which “could lead to an overall increase in demand for electricity from controlled cultivation”.5 In the final version, however, the option of outdoor growing as well as any mention of increased energy use and carbon footprint have disappeared: “Suitable criteria for production are being developed to ensure high-quality cultivation in compliance with the sustainability goals of the Federal Government. Permissible forms of cultivation include, in particular, indoor cultivation under artificial light and cultivation in greenhouses in order to ensure adequate quality control.” How a ban on imports and outdoor growing could square with Germany’s sustainability goals is difficult to imagine if the true extent of the extremely high impact on the climate and energy crisis of domestic indoor growing is fully taken into account.6

The complete absence in the Eckpunkte of any social justice, developmental or environmental considerations appears to be the collateral damage from the ‘Interpretationslösung’ bid. A German ‘Alleingang’ with a fully closed domestic regulation model is seen as the best bet to get EU buy-in for an interpretative declaration. For decades, Germany has spearheaded international advocacy for a development-oriented drug policy, promoting alternative legal livelihoods for small farmers in traditional producing countries who depend on illicit cultivation. But now, at the moment of an historical transition of the largest illegal drugs market, those principles are being neglected in an attempt to minimise legal tensions with the UN treaties and EU law―and with low chances of success.

Officials may consider the ‘Interpretationslösung’ as politically attractive and convenient, least likely to stir up controversy within the EU. And perhaps it can buy some time, but in legal terms it is unlikely to do the trick. As the Eckpunkte confirm, the international legal framework “offers limited options for implementing the coalition project”, so the government is faced with difficult choices, balancing legal scrutiny with political realities. Uruguay and Canada could more easily leave the solution hanging in the air, since the UN conventions do not have a strong enforcement mechanism. Germany, however, is under considerable additional pressure because of much more robust EU enforcement procedures. Acknowledging some inherent weakness in the plan, the draft anticipates “a risk of criticism” in international bodies and from other states. Especially at European level, “close and transparent coordination will be necessary to ensure that the EU Commission and member states follow Germany’s interpretation and to avoid infringement proceedings and/or state liability claims, which would ultimately have to be decided by the ECJ”.

The government would be well advised to already start working on a legally more solid Plan B if they really want to avoid criticism and potential consequences of their upcoming infractions. It seems little more than wishful thinking that the European Commission, other countries or ultimately the European Court of Justice (ECJ) will just follow Germany’s ‘interpretation’. A Plan B does not necessarily mean scaling the ambitions back to only decriminalisation and home-grow, because as the Eckpunkte rightly point out, “limited legalisation with a focus on personal cultivation for personal consumption and possession would fall short of the mandate of the coalition agreement”. In fact, a Plan B could even be more ambitious by allowing international trade.

Putting the fate of the whole regulation project into the hands of the European Commission is a risky endeavour. The Commission does not have the competence to rule whether or not the regulation is in compliance with the UN conventions, and in the past in fact has made bad judgements in the case of CBD or its advice to member states on the WHO cannabis recommendations. Even with the 1988 Convention, as clearly stated when the EU signed the treaty, its competence is limited to the precursor regime under Article 12. A more principled course of action would be to indeed explain carefully the reasons for the policy change, appealing to health protection and crime prevention, to human rights principles and the aims of the convention, as Uruguay has done before. But then honestly acknowledge that legal tensions with certain treaty requirements remain as yet unresolved, and respectfully request some time to find the most appropriate way to address those tensions in compliance with international law principles and in close coordination with the relevant institutions and with other countries within the EU and abroad facing the same hurdles.

Germany’s current interpretative approach puts the fate of the entire project on very thin ice. But there is still time to change course, and legally sound and politically viable alternative options are available. The hard reality, however, is that legal regulation conflicts with certain obligations in the UN drug control treaties which are also reflected in EU law. Ultimately, Germany and other regulating countries will have to adapt their treaty obligations, by convening a Conference of the Parties type meeting to negotiate amendments, or―more realistically―by means of individual reservations or a collective ‘inter se’ modification agreement.7 A first step to clear the path in that direction would be for Germany to withdraw its objection against Bolivia, which faced a similar dilemma with regard to the coca leaf. Bolivia successfully applied for a coca reservation, and Germany was one of sixteen countries that formally registered an objection; Mexico already withdrew its objection a few years ago―an example Germany, Canada and the Netherlands should follow. Those scenarios are not easy and require active diplomacy, but in the end will have a better chance of success compared with a legally indefensible ‘interpretative declaration’ that does not alter anything with regard to the prohibitive terms of the treaties. Resolving the tensions with the UN conventions is also the only way to legitimately argue that the regulation is ‘within right’ under the 2004 Framework Decision, and thus avoid infringement procedures when the new law is implemented, by 2024.8

A proactive approach together with like-minded countries could turn this challenging project into an inspiring example for the world, with not only health protection and crime prevention, but also social justice and sustainable development at its core. It could bring much needed resources to marginalised rural communities in Morocco, Albania, Colombia or the Caribbean, instead of concentrating the profits of the new cannabis industry in the hands of a few big corporations.9 And it could contribute to reaching the climate goals instead of adding huge amounts of energy and carbon emissions on this moment of global crisis.


Notes

1 Bundesministerium für Gesundheit, Eckpunktepapier der Bundesregierung zur Einführung einer kontrollierten Abgabe von Cannabis an Erwachsene zu Genusszwecken, 25 October 2022. https://www.bundesgesundheitsministerium.de/ministerium/meldungen/kontrollierte-abgabe-von-cannabis-eckpunktepapier-der-bundesregierung-liegt-vor.html
2 “Das Vorhaben kann dabei flankiert werden durch einen Einsatz Deutschlands für einzelne Änderungen/ Aktualisierungen auf EU- und Völkerrechtsebene.”
3 Martin Jelsma, “Cannabis regulation vs international and EU law: Legal tensions and compliance options”, rausch – Wiener Zeitschrift für Suchttherapie, Cannabis-Legalisierung: 2022 – 3/4, September 2022, pp. 92-101. https://www.psychologie-aktuell.com/journale/rausch/bisher-erschienen/inhalt-lesen/2022-34.html Final author’s draft (August 2022) available at: https://www.researchgate.net/publication/364656281_Cannabis_regulation_vs_international_and_EU_law_Legal_tensions_and_compliance_options
4 “It is the understanding of the Federal Republic of Germany that the basic concepts of the legal system referred to in article 3, paragraph 2 of the Convention may be subject to change.”
5 Bundesministerium für Gesundheit, Eckpunktepapier der ressortübergreifenden Arbeitsgruppen zur Einführung einer kontrollierten Abgabe von Cannabis an Erwachsene zu Genusszwecken, Interner entwurf, Vertraulich VS – nfD, 22 September 2022.
6 Transnational Institute, Cannabis and Climate: The carbon footprint and energy use of indoor cultivation, TNI Cannabis Policy Brief 2, October 2022. https://www.tni.org/en/publication/cannabis-and-climate
7 David Bewley-Taylor, Neil Boister, Malgosia Fitzmaurice, Martin Jelsma, John Walsh, Balancing Treaty Stability and Change: Inter se modification of the UN drug control conventions to facilitate cannabis regulation, TNI/GDPO/WOLA March 2018. https://www.tni.org/en/publication/balancing-treaty-stability-and-change
8 Piet Hein van Kempen, and Masha Fedorova, Cannabis regulation through the “without right” clause in Article 2(1) of EU Framework Decision 2004/757/JHA on illicit drug trafficking, Radboud University, Nijmegen, Netherlands, unpublished final draft (June 2022), forthcoming.
9 Transnational Institute, Cannabis and Development: An introduction to sustainable development issues in the global cannabis policy debate, TNI Cannabis Policy Brief 1, June 2022. https://www.tni.org/en/publication/cannabis-and-development