Series on Legislative Reform of Drug Policies Nr. 11 March 2011 Lifting the ban on coca chewing Bolivia’s proposal to amend the 1961 Single Convention By Martin Jelsma1 January 31 marked the close of the 18- month period during which countries could submit objections to Bolivia’s proposal to remove from the 1961 Single Convention on Narcotic Drugs the obligation to abolish the practice of coca chewing. A total of eighteen countries formally notified the UN Secretary General that they could not accept the proposed amendment: the United States, the United Kingdom, KEY POINTS Sweden, Canada, Denmark, Germany, the Russian Federation, Japan, Singapore, • The ban on coca chewing is a violation of Slovakia, Estonia, France, Italy, Bulgaria, indigenous rights and needs to be lifted Latvia, Malaysia, Mexico and Ukraine.2 • The condemnation of coca leaf and tradit- ional use by the 1961 Single Convention The U.S. convened a group of ‘friends of conflicts with the principles and provisions of the convention’ to rally against what they later treaties and declarations perceived to be an undermining of the ‘integrity’ of the treaty and its guiding • The whole of South America expressed principle to limit the trade and use of support for Bolivia’s amendment proposal narcotic drugs exclusively to medical and • The UN Permanent Forum on Indigenous scientific purposes. The UN Economic and Issues, in its advisory capacity to ECOSOC, Social Council (ECOSOC or the Council) recommends that Member States support this will have to decide how to proceed, most initiative likely during its substantive session in • The opposing arguments brought forward Geneva this July. in the eighteen objections to Bolivia’s pro- This briefing paper analyses the reasons posal are dubious and contradictory behind the proposed amendment and the • Rejecting the amendment will not make the opposing arguments that have been issue disappear brought forward, and outlines the various • A constructive dialogue is required to re- options to be considered as the fate of solve the legal ambiguities one way or another Bolivia’s proposal is determined. Simply rejecting the amendment will not make the • A WHO expert review of coca leaf is long issue disappear. overdue Legislative Reform of Drug Policies | 1 THE BAN ON COCA CHEWING: LEGAL different approach to plants from which AMBIGUITIES alkaloids could be extracted. The 1971 Convention did not condemn traditional The decision to ban coca chewing fifty years and ceremonial uses of the plants contain- ago was based on a 1950 report elaborated ing psychoactive ingredients that were in- by the UN Commission of Inquiry on the cluded in the 1971 schedules. Coca Leaf with a mandate from ECOSOC, after a brief visit to Peru and Bolivia. The The Mexican delegate at the 1971 conferen- head of the Commission, Howard B. ce referred to the traditional use of the Fonda, gave an interview in Lima in Sep- peyote cactus (containing the hallucinogenic tember 1949, before beginning his work: substance mescaline) arguing that the “reli- gious rite had not so far constituted a pub- “We believe that the daily, inveterate use lic health problem, still less given rise to illi- of coca leaves by chewing ... not only is cit traffic…. It would clearly be extremely thoroughly noxious and therefore detri- unjust to make the members of those tribes mental, but also is the cause of racial de- liable to penalties of imprisonment because generation in many centers of population, of a mistaken interpretation of the Conven- and of the decadence that visibly shows in tion and thus add an inhuman punishment numerous Indians – and even in some to their poverty and destitution….” 3 mestizos – in certain zones of Peru and Bolivia. Our studies will confirm the cer- The U.S. delegation agreed to “a consensus tainty of our assertions and we hope we that it was not worth attempting to impose can present a rational plan of action ... to controls on biological substances from which attain the absolute and sure abolition of psychotropic substances could be obtained.”4 this pernicious habit.” By excluding from the schedules plants from Fonda’s language reads to us now like a which alkaloids could be extracted, the 1971 relic from a long gone era. But the decision Convention deviated – with good reason – to outlaw coca chewing based on the out- from the guiding rule that was applied with 5 dated report is still in effect today. A scien- zero-tolerance in the Single Convention. tific update formally sanctioned by a UN 1988 Convention. The 1988 Convention agency has not been undertaken since. against Trafficking of Narcotic Drugs and Embarrassingly, therefore, the 1950 report Psychotropic Substances added further con- still counts as the official UN reference fusion on the issue of traditional use. In a document on the coca leaf. new attempt to obtain legal recognition for Peru and Argentina did register reserva- traditional uses, Peru and Bolivia negoti- tions regarding the articles banning coca ated paragraph 2 of article 14 into the 1988 chewing when signing the 1961 Conven- Convention, saying that measures to eradi- tion, but both countries later withdrew cate illicit cultivation and to eliminate illicit their objections, Peru upon ratification in demand “shall respect fundamental human 1963 and Argentina in 1979. Bolivia initial- rights and shall take due account of tradi- ly did not sign at all and only acceded to the tional licit uses, where there is historic evi- treaty in 1976, without any reservations. dence of such use.” The 1961 treaty obligation to abolish coca chewing is thus universally in force today, However, the 1988 Convention (articles even though much has happened since that 14.1 and 25) also said that its provisions raises questions about the validity of the ban. should not derogate from any obligations under the previous drug control treaties. 1971 Convention. Only ten years after the Bolivia therefore also made a formal reser- Single Convention, the 1971 Convention vation to the 1988 Convention emphasizing on Psychotropic Substances took a notably that its “legal system recognizes the ances- 2 | Legislative Reform of Drug Policies tral nature of the licit use of the coca leaf the intention of the plenipotentiary con- which, for much of Bolivia’s population, ferences that adopted those conventions.” dates back over centuries.” Peru also re- served the right to legal cultivation,6 and The INCB found that it “does not appear Colombia underscored the rights to grow necessary to amend the international drug coca of its indigenous populations.7 control treaties in substantive terms at this stage, but some technical adjustments are National legislation. Like Bolivia, Peru has necessary in order to update some of their always maintained a legal coca market provisions.”12 Summarizing its conclusions under its domestic law and declared coca on the coca leaf, the Board recommended 8 chewing in 2005 as cultural patrimony. that “the conflict between the provisions of Argentina decriminalised coca leaf in 1989 the 1961 Convention and the views and by inserting the following exemption article legislation of countries where the use of coca in its own law: “The possession and con- leaf is legal should be solved. There is a need sumption of the coca leaf in its natural to undertake a scientific review to assess the state, destined for the practice of ‘coqueo’ coca-chewing habit and the drinking of coca or chewing, or its use as an infusion, will tea”,13 calling on the WHO to undertake such not be considered as possession or con- a review. sumption of narcotics.” 9 WHO. In 1992 the World Health Organi- Colombia allows the traditional use of coca zation’s Expert Committee on Drug in its indigenous reserves.10 And the new Dependence (ECDD) undertook a ‘pre- Bolivian Constitution says that the: “State review’ of coca leaf at its 28th meeting. The protects the original and ancestral coca leaf 28th ECDD report concluded that, “the coca as part of the cultural Heritage … in its leaf is appropriately scheduled under the natural state it is not a narcotic.”11 This Single Convention on Narcotic Drugs, article poses an absolute legal conflict with 1961, since cocaine is readily extractable Bolivia’s obligation under the 1961 Con- from the leaf. The Committee did not vention that needs to be resolved one way recommend coca leaf for critical review.” or another. INCB. Several of these inconsistencies were It is noteworthy that the Committee did pointed out by the International Narcotics not reconfirm the conclusion that coca leaf Control Board (INCB) in the supplement to should be scheduled because chewing the its Report for 1994. It contained a section on leaves was considered a hazardous practice, “Coca leaf: a need to clarify ambiguities,” but only because it is the raw material for saying that “the Board would like the clarifi- cocaine extraction. Moreover, the Com- cation of the long-standing misunderstand- mittee drew attention to the fact that since ing of the provisions of article 14 of the the 1950 report by the UN Commission of 1988 Convention, which has had some Inquiry on the Coca Leaf “there has been bearing on the debate on coca leaf.” The no official evaluation of coca leaf chewing 14 Board also pointed out that there by WHO.” “were no specific provisions in the 1961 Subsequently, the findings of a 1995 WHO Convention regarding another traditional study on coca/cocaine proved controver- non-medical use of coca leaf, the drinking sial, and were left unpublished due to in- of coca tea (mate de coca). Thus, mate de tense U.S. pressure. According to the brief- coca, which is considered harmless and ing kit that summarized the study’s results, legal in several countries in South Ameri- the “use of coca leaves appears to have no ca, is an illegal activity under the provi- negative health effects and has positive sions of both the 1961 Convention and therapeutic, sacred and social functions for the 1988 Convention, though that was not indigenous Andean populations.”15 Legislative Reform of Drug Policies | 3 Indigenous Rights.