The legalisation of cannabis will pose legal challenges for the traffic light coalition (a coalition of Social Democrats, Liberals and the Greens). In doing so, the coalition will also have to address the question of whether the legalisation of cannabis is compatible with the obligations entered into under international law.
Germany has acceded to several international treaties concerning the handling of narcotic drugs, such as the "Convention on Psychotropic Substances of 1971" and the "United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988". Particularly relevant to the regulation of cannabis is the “Single Convention on Narcotic Drugs, 1961”, which entered into force for the Federal Republic of Germany in 1974.
The Convention specifies which narcotic drugs are subject to international control. It also regulates the control and monitoring obligations of the parties to the Convention in the cultivation of narcotic substances. The Single Convention only permits the cultivation of cannabis for medical purposes, but rejects its legalisation for recreational use. This raises the question of how cannabis can be legalised for recreational use without violating obligations under international law.
The bill of a Cannabis Control Act in 2015 provided for the Federal Republic of Germany to denounce the Convention and to subsequently sign it again. When acceding to the Convention again, a reservation could be made to the restrictive cannabis regulations. Examples of such a reservation are provided by the countries of India, Pakistan and Bangladesh. Bolivia had also chosen this path in the past when legalising the chewing of coca leaves. Bolivia informed the Secretary-General in June 2011 of its decision to denounce the Single Convention. This denunciation took effect on 1 January 2012. On the same day, Bolivia then re-acceded to the Convention, but now with the reservation of permitting the chewing of coca leaves for cultural and medicinal purposes. Germany could also proceed in the same way with the legalisation of cannabis. A reservation of the right to permit the use of cannabis also for non-medical purposes is explicitly possible under Article 49 of the Convention.
In contrast, the method chosen by Canada and Uruguay should be legally possible, but such an approach is not recommended. Canada and Uruguay have legalised cannabis without conforming to international law. Although both countries have legalised the use of cannabis for recreational purposes, no steps have been taken to resolve the contradiction between the national legal situation and the countries’ obligations under international treaties. For this reason, these two countries are annually reprimanded by the International Narcotics Control Board (INCB) responsible for compliance with the Single Convention for their cannabis regulations and called upon to comply with their obligations under the Convention. Even if the INCB cannot impose any severe sanctions, such as fines, on countries in breach of the Convention, there can be no question that such a persistent breach of obligations under international law should not be considered by the Federal Republic of Germany.
