The resolution of ambiguities regarding coca

cocaleafThe international legal status of the coca leaf and of its traditional uses in the Andes has long been ambiguous and contested. While the International Narcotics Control Board in 1994 stated its intention to remove those ambiguities, it has instead moved towards a more intolerant criticism of policies carried out by countries like Bolivia in their renewed promotion of coca.

The tensions surrounding around the coca leaf and the current operation of the International Narcotics Control Board (INCB or Board) are explored in this paper. These tensions are analysed in light of the INCB’s interpretation of the UN drug control conventions andits mandate as laid out within them.

The international legal status of the coca leaf and of its traditional uses in the Andes has long been ambiguous and contested. Consequently, in an attempt to obtain legal recognition for traditional uses, Peru and Bolivia negotiated paragraph 2 of Article 14 into the 1988 Convention, stipulating that measures to eradicate illicit cultivation and to eliminate illicit demand “should take due account of traditional licit use, where there is historic evidence of such use.” Bolivia also made a formal reservation to the 1988 Convention stressing that its “legal system recognizes the ancestral nature of the licit use of the coca leaf which, for much of Bolivia’s population, dates back over centuries.”

However, Article 25 of the 1988 Convention guaranteed that its provisions should not derogate from any obligations under the previous drug control treaties. Furthermore, as the International Narcotics Control Board  (INCB) pointed out in its 1994 supplement on the Effectiveness of the International Drug Control Treaties, “the drafters of the 1988 Convention enhanced the non-derogatory clause by including in paragraph 1 of article 14 a provision stipulating that any measures taken pursuant to that Convention should not be less stringent than the provisions applicable to eradication of illicit cultivation of plants containing narcotic drugs and psychotropic substances under the provisions of the previous international drug control conventions.” (1)

Other ambiguities

In its 1994 supplement, the INCB mentioned other ambiguities surrounding the coca issue, such as the fact that drinking of coca tea “which is considered harmless and legal in several countries in South America, is an illegal activity under the provisions of both the 1961 Convention and the 1988 Convention, though that was not the intention of the plenipotentiary conferences that adopted those conventions” (emphasis added). At that point there was discussion of coca as an area “where clarifications are needed” with the Board “confident that the Commission on Narcotic Drugs, on the basis of scientific evaluation, will resolve such long-standing ambiguities, which have been undermining the conventions.”

It consequently called on the WHO to undertake a scientific review. Outcomes of a WHO study on coca/cocaine in 1995, however, proved too controversial to be published. According to the briefing kit summarising the research results the “Use of coca leaves appears to have no negative health effects and has positive therapeutic, sacred and social functions for indigenous Andean populations.”(2)

Stalemate

Nothing has happened since to resolve the legal inconsistencies surrounding coca. Indeed, the Board has been reluctant to highlight the situation in its role as a watchdog of the conventions, deal with the nations concerned in a spirit of dialogue and cooperation, and encourage the CND and WHO to move to resolve the matter. Rather the INCB has stepped up its condemnation of traditional use in the Andes and of industrialization of coca products.

As such the Board has been critical of policy positions on coca in a number of Andean states. In its 2005 Annual Report the INCB reminded the parties of the fact that “the transitional measures regarding the licit cultivation of coca bush and consumption of coca leaf under the 1961 Convention ended a long time ago”.(3) The following Annual Report emitted a clear warning to the governments of Bolivia, Peru and Argentina that growing and using coca leaf is in conflict with the 1961 Single Convention. Consequently, countries were asked to adapt their national legislation back in line with the conventions. (4) Bolivia was even the focus of a “Special Topics” section in the 2006 Annual Report:

“The situation in Bolivia, which for many years has not been in conformity with that State’s obligations under the international drug control treaties, continues to be a matter of particular concern to the Board. Bolivia is a major producer of coca leaf, and national legislation allows the cultivation of coca bush and the consumption of coca leaf for non-medical purposes, which are not in line with the provisions of the 1961 Convention.”(5)  

Recent developments

The Board has also expressed particular concern over Bolivia’s recent desire to withdraw the coca leaf from the 1961 narcotic drugs lists.(6) Bolivian policies and laws on coca leaf have been under review since the 2005 election of President Evo Morales, a coca farmers’ leader and himself a habitual coca chewer. The Bolivian government, hoping coca leaf could be ‘unscheduled’ in order to enable export of coca-based products, has announced its intention but not yet initiated the formal notification procedure. The strong criticism and the fact that the Board presented this as a ‘matter of particular concern’ in a ‘special topics’ section of its Report, which sounds very much like a ‘waiting room’ for the invocation of Article 14, raised the anger of the Bolivian government.

When INCB President Emafo presented the Annual Report at a press conference in Vienna in early 2007 he made it clear he was opposed to Bolivia’s intention to reassess the coca leaf and promote its industrial usage, a move which in his view would be in breach of the international drug control conventions. He also added his ‘personal view’ that coca chewing “is not good for working people” since taking away their hunger impedes “appropriate nutrition, part of human rights.”(7)

Concerned about human rights?

This was a rare INCB reference to the defence of human rights in drug control, but a selective one as Bolivia defends its new coca policy with reference to its inalienable cultural and indigenous rights, which are equally part of human rights.(8) After the press conference, the Bolivian ambassador in Vienna stated, “Bolivia had invited the Board for a visit in September. The radical position the president has taken toward Bolivia puts into jeopardy the good relations between La Paz and the Board. … I’m not sure under these circumstances a trip to Bolivia will be necessary. I would not be able to understand that this gentleman appears and tells our President: listen, you have to stop chewing.” (9)

Two INCB representatives did visit Bolivia in September 2007, perhaps showing a more positive stance towards Bolivia’s claims.   Nonetheless, ambiguities around coca continue and the INCB, instead of requesting the appropriate WHO and CND guidance to clarify the matter, looks set to continue to make harsh and narrow judgements that condemn countries that permit traditional coca use and the industrialization of coca.

Notes:

1. E/INCB/1994/Suppl.1, Effectiveness of the International Drug Control Treaties, Supplement to the Report of the International Narcotic Control Board for 1994.

2. Briefing Kit, WHO/UNICRI Cocaine Project, 3 March 1995. For more background see: Coca, Cocaine and the International Conventions, TNI Drug Policy Briefing, No. 5, April 2003.

3.  INCB Annual Report 2005, para 393. The transitional measures allowed countries to phase out coca chewing over 25 years, a period that expired in 1989, 25 years after the convention entered into force in December 1964.

4. “In Peru, coca bush growers are putting pressure on the new Government to stop manual eradication of coca bush and to remove coca leaf from international control. In Argentina, under current legislation, the possession of coca tea or coca leaf in a natural state for chewing purposes is not considered to be possession or personal use of a narcotic drug.” INCB Annual Report for 2006, para. 362. In 2006 the Board also criticized Colombia in a letter for allowing its indigenous peoples to produce and distribute domestically coca tea and a soft drink called ‘Coca Sek’. Since 1991 the Colombian Constitution recognizes indigenous territorial and cultural rights, and after several legal battles indigenous groups with a longstanding tradition of coca uses were allowed to also industrialize coca and to sell coca-based tea and soft drinks. In reaction to the INCB letter, Colombia prohibited sales of products made from the coca plant again in February 2007 and police raided several selling points to take coca products off the shelves. Sergio de Leon “Coca-Cola Vs Coca Sek in Colombia,” Washington Post, The Associated Press, May 10, 2007

5.  INCB Annual Report 2006, paragraph 171.

6.  See: Sending the wrong message, The INCB and the un-scheduling of the coca leaf, TNI Drug Policy Briefing No. 21, March 2007; and Coca Yes, Cocaine No? Legal Options for the Coca Leaf, TNI Drugs & Conflict Debate Paper 13, May 2006.

7La coca genera tensión entre la ONU y el Gobierno boliviano, La Razón, La Paz, 1 March 2007.

8. This also leaves aside the fact that it is a strange idea that an individual’s human rights are deemed to be infringed by his or her government’s tolerance of the availability of a substance that he or she chooses to ingest.

9. La coca genera tensión entre la ONU y el Gobierno boliviano, La Razón, La Paz, 1 March 2007.

Adapted from: The International Narcotics Control Board: Current Tensions and Options for Reform, IDPC Briefing Paper 7, February 2008

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