Drug use: Does cannabis legalization violate applicable law?

A few weeks before the draft law to legalize cannabis announced by the federal government, an expert dispute about the legal feasibility broke out. A report presented in Munich on behalf of the Bavarian state government comes to the conclusion that the federal government’s plans violate international law.

On the other hand, an as yet unpublished legal study by the University of Nijmegen gives the federal government backing for its legalization project. First, the specialist portal “Legal Tribune Online” (LTO) reported on the Dutch report. Both reports are available from the German Press Agency in Munich.

“Violation of UN Convention on Drugs”

“The cannabis legalization planned by the federal government contradicts international and European law,” says the 53-page scientific elaboration by Bernhard Wegener, Chair of Public Law and European Law at the Friedrich-Alexander University in Erlangen.

According to his report, the traffic light plans in particular violate the United Nations Convention on Drugs: “The UN drug control bodies assess a comprehensive cannabis legalization of the kind planned by the federal government in constant decision-making practice as a breach of the UN Convention on Drugs.” With a view to European law, the planned state or state-licensed trade, cultivation and sale of cannabis for purposes other than scientific or medical purposes is “inadmissible”.

CSU: No legalization of smoking weed

“In my opinion, a breach of EU law should always result in infringement proceedings,” said Bavaria’s Health Minister Klaus Holetschek (CSU), who has categorically rejected plans to legalize marijuana for months. He called on the federal government to drop plans to allow the cultivation, trade and consumption of cannabis for recreational purposes. “We will continue to work to ensure that smoking weed is not legalized.”

The Federal Ministry of Health said that the Bavarian report “apparently does not provide any new insights. The Federal Government had already pointed out the narrow risks under international and European law in the key issues paper last autumn.” The aim is and remains “to improve the protection of minors and health for consumers and to curb the black market. We are also in contact with the EU Commission and will present solutions that conform to European law.”

Pleasure cannabis possible under international law

Criminal lawyer and criminologist Masha Fedorova and her colleague Piet Hein van Kempen from the University of Nijmegen are to publish their investigation in the March issue of the European Journal of Crime, Criminal Law and Criminal Justice, according to the LTO. The duo came to the conclusion that the introduction of a state-controlled, national licensing system for recreational cannabis by an EU member state is possible under European and international law under certain conditions.

Specifically, the authors write: Legalization can be justified if the state concerned “sincerely believes and convincingly argues that it can use this system to implement individual and public health, public safety and/or the prevention of violent crime more effectively, than it can achieve via the prohibitive approach to recreational cannabis”. At the same time, Federova and van Kempen also name conditions that must be met for legalization – such as strict precautions against international cannabis tourism.

Holetschek does not accept these arguments: “Experiences from the USA and Canada show that the black market cannot be dried up with legalization. Rather, the black market continues to exist. In addition, problems in market regulation, smuggling and tax fraud pose insoluble problems for the state problems.”