Cannabis legalization in Germany – first misunderstandings of a young debate

Original article in German on Krautinvest

The year is still young, and yet a lively debate about the legalization of cannabis in Germany has already gathered momentum following last year’s landmark federal election. Many aspects and areas of regulation are being addressed that are actually not a problem at all. For example, some people still say that a pharmacy monopoly is imminent, that the maximum THC content needs to be regulated, that home cultivation is still a long way off, and that from the point of view of international law, it is not possible to import recreational cannabis into Germany, so for example Peter Homberg and the BvCW in their key issues paper).

Thereby, with the Cannabis Control Act, there is already a draft, a blueprint, which proposes a comprehensive regulation of legalization. Home cultivation, import, training of retailers and quality of cannabis is already comprehensively regulated in this control law. It is always worthwhile to take a look at this draft more often! Because it also assumes that Germany can certainly import cannabis products, even in compliance with its obligations under international law. More on this later. If we assume that it would actually be necessary to cultivate cannabis in Germany, the following thought experience would result:

Assuming a yield per square meter of 400 g is possible in a production plant, with a harvest cycle of 52 days and 7 harvests in the entire year, a total demand of 500 t of dried flowers can be covered. The required cultivation area for this is 178,082 m² of pure cultivation area, plus further space for commercial areas and administration.

This would be equivalent to 21 soccer fields of average size of pure cropland, with a total plant capacity of about 24 tons per year.

Such a plant would involve investments of at least €15-20 million and a planning and implementation phase of at least 3-4 years. Should these plants also have to be put out to tender, as some considerations in the discourse suggest, there would be a further delay of at least 2-3 years. We would then not see the first recreational cannabis from German production before 2028.

This would postpone legalization by a long way, and completely unnecessarily. After all, importing recreational cannabis into Germany is possible, as the Cannabis Control Act already shows.

Just to remind you: Although already Pope Martin V. (1368-1431) had food prepared with hemp in the 14th century, hemp cultivation was widespread in Europe and even cannabis preparations could be found in pharmacies until the 1930s, the Bundestag passed the new Narcotics Act („BtMG“) in December 1971.

Single Convention

This was preceded by the accession of the Federal Republic of Germany to a number of conventions within the framework of the United Nations („UN„) on drug policy, in particular the Single Convention on Narcotic Drugs of March 30, 1961.

As a result, not only intoxicating cannabis with the active ingredient tetrahydrocannabidiol („THC“) was henceforth strictly penalized, but also commercial hemp.

At the international level, Germany must therefore find a solution as to how it can meet the obligations arising from this agreement under international law. There are various examples of this. Uruguay, for example, has invoked the protection of human rights when legalizing recreational cannabis, arguing that prohibition has led to violence, exploitation, and significant human rights violations. This invocation is not necessarily a dogmatically convincing solution. Uruguay was subsequently warned several times by the International Narcotics Control Board (INCB) and the country was even threatened with sanctions.

As a result, medical cannabis could not be exported to Germany either, because in the opinion of the INCB, Uruguay had violated the regulations of the Single Convention and export to other countries was thus no longer possible. This view was followed by the German government at the time.

Canada has also not chosen a clear path for legalization. Canada was also threatened with measures by the INCB, but they never implemented them. Enforcing the complex and aging Single Convention regulations against a powerful G-7 nation seems infinitely more difficult. Moreover, for a long time, Canada was the only country besides the Netherlands that maintained a state medical cannabis program that met the requirements of the Single Convention. As a result, Canada was able to develop a medical cannabis industry that supplied much of the world with corresponding exports. This was one reason why the INCB kept a low profile, and the German government also studiously ignored Canada’s violations of the Single Convention.

Another possibility arises from the denunciation of the Single Convention and a subsequent re-entry with the „cannabis“ reservation. Bolivia has followed a similar path, with the reservation for coca. India, Pakistan, and Bangladesh already entered reservations for the use of cannabis for recreational purposes when they entered the 1961 Convention.

The Green Party’s Cannabis Control Act provides for exactly this possibility. In the explanatory memorandum it is explained that first a denunciation of the Single Convention shall be made to the Secretary General of the United Nations. The denunciation becomes effective within the time limits of Art. 46 of the Single Convention on January 1 or July 1, but at the earliest after 6 months. At the same time, according to Art. 50 (2) and (3) of the Single Convention, re-entry can be requested with a reservation. For the other member states (at least 1/3) there is the possibility to file an objection against this reservation, with the consequence that Germany could possibly not become a member of the Single Convention again. However, this is not to be expected, as the community of states is likely to have an overriding interest in continuing to cooperate with Germany on other types of drugs within the framework of the Single Convention.

Then there is the possibility of the so-called „inter se modification“ procedure according to Art. 41 of the Vienna Convention on the Law of Treaties (VCLT) of 1969. This procedure offers the possibility of finding a balance between treaty stability and the need for changes in outdated international agreements, especially in the case of a lack of consensus.[1]

So far, only a few states are breaking new ground in cannabis policy, while other states and members of the Single Convention continue to enforce a very rigorous prohibition policy (for example, Russia, the Philippines, etc.). Therefore, a fundamental and timely change of the Single Convention is not to be expected. However, as soon as states want to establish a legal international trade chain, they can make use of this possibility under international law and conclude „mini“ agreements within the framework of the so-called „Inter se Modification“ procedure, formulate their contractual relations with each other in a liberal manner and enter into international trade relations. In the external relationship with other states, the regulations of the Single Convention would then still apply. This option will play a role in securing the international supply chain in particular.

Imports to Germany are only permitted if the exporting country also provides for exports and issues licenses for this purpose. The cannabis imported into Germany must therefore have been legally produced in the exporting country.

At present, only Uruguay and Canada are likely to be considered for concluding corresponding supply agreements with Germany under the Inter Se Modification Procedure. As long as legalization has not been decided at the federal level in the USA, there is an export ban on THC products. The same applies to all other countries; a corresponding medical cannabis program under state control is not sufficient for this purpose.

However, it can be assumed that countries that already produce medical cannabis and have distributed cultivation licenses (e.g. Colombia, Lesotho, Greece, Macedonia, etc.) will quickly create the legal conditions for exporting to the largest European cannabis market.

It is doubtful whether cultivation in Germany can be made climate-compatible at all. If production facilities are licensed in Germany, the operators should be obliged to adopt a zero-energy concept so that Germany does not thwart its own climate policy goals.

Importing from regions with a more favorable climate and already existing, committed cultivation programs therefore seems preferable in any case, and is also absolutely necessary for a speedy implementation of legalization.

Kai-Friedrich Niermann

[1] Regulating Drugs: Resolving Conflicts with the UN Drug Control Treaty System, John Walsh/Martin Jelsma, 2019, page 4, available at: https://jied.lse.ac.uk/articles/10.31389/jied.23/