Recreational Cannabis: Conform to International Law After All?
On the misinterpretation of Article 2(9) of the UN Single Convention on Narcotic Drugs (1961)
Legalizing the use of cannabis for recreational purposes, as announced by the new federal government in its coalition agreement, was previously considered highly questionable under international and European law. Germany has committed itself under international law in several UN conventions to prohibit, among other things, the cultivation, trade, sale and possession of cannabis for other than medical or scientific purposes. European law in turn refers to said international treaties. Recently, however, there have been increasing claims that there is now a possible interpretation of the UN Single Convention of 1961 that justifies the legalization of recreational cannabis under international law. If this proves to be true, it would represent a fundamental turning point in the legal debate on the legalization of recreational cannabis.
In March 2022, a spokesperson for the DRCNet Foundation Inc. told the plenary session of the UN Commission on Narcotic Drugs that the Convention had been misinterpreted and misapplied over the decades. According to him, it does not prevent the legalization of recreational cannabis use - on the contrary, on the contrary, it allows Member States to legalize cannabis for purposes other than medical or scientific use. In doing so, he first refers to Article 4(c) of the UN Single Convention, which states that the obligation of Member States to restrict certain activities relating to narcotic drugs is not absolute, but subject to the rest of the content of the 1961 UN Convention. Article 2(9) states:
"Parties are not required to apply the provisions of this Convention to drugs which are commonly used in industry for other than medical or scientific purposes, provided that: They ensure by appropriate methods of denaturing or by other means that the drugs so used are not liable to be abused or have ill effects (article 3, 28 The International Drug Control Conventions paragraph 3) and that the harmful substances cannot in practice be recovered."
From this wording he concludes that a legalization of recreational cannabis is compatible with international law if it is ensured by "other means" that the narcotic substances cannot be misused or cause harmful effects on health - for example through a state-regulated cultivation and distribution according to applicable quality standards. In the meantime, this interpretation is also increasingly found in industry circles - among others, a US-American anti-addiction platform has published a report on this very topic with the same conclusion.
At first glance, this line of argument appears conclusive. However, a more precise interpretation of the norm quickly reveals that an international misinterpretation of the 1961 UN Single Convention over more than 60 years can be ruled out.
The purpose of Article 2(9) is to allow narcotic substances to be used in the commercial sector after they have been rendered non-addictive. The regulatory example of denaturing and the requirement that these harmful substances cannot be recovered in practice make this clear. This interpretation is also confirmed by the official commentary on the Convention. This states that the Member States must ensure that it is impossible to recover both narcotic substances that are used up in commercial production and those that are merely converted as accompanying substances. Thus, it is not merely a matter of risk reduction through state-controlled cultivation and distribution. Rather, Article 2(9) applies to cases in which narcotics lose their property as narcotics and are used in a completely different context.
A legalization of cannabis for so-called recreational use remains illegal under international and European law at the present time. A contrary interpretation of Article 2(9) of the Single Convention is not only daring, but simply legally incorrect. Whether the Member States legalize recreational cannabis despite the clear wording of the international conventions - as Canada, Uruguay and Malta have recently done without receiving significant sanctions - and thus accept an open violation of them, is again another question.