The plight of Bolivian coca leaves: Bolivia's quest for decriminalization in the face of inconsistent international legislation. (The Legal Challenges of Globalization: A View from the Heartland)

• Published date: 22 September 2014
• Author: Kim, Abraham
• Date: 22 September 2014

INTRODUCTION

On March 12, 2012, at a United Nations narcotics control summit in Vienna, Austria, a man held up a green leaf in front of representatives from fifty-three nations. (1) This man, Bolivian President Evo Morales, declared that his countrymen possessed an "ancestral right" to consume this particular leaf and downplayed the international concerns associated with it by displaying byproducts made from the leaf on the podium from which he was speaking. (2) The item at the center of attention at that moment, at the 55th session on the Commission on Narcotic Drugs, was the coca leaf, the main ingredient of the powerfully addictive drug, cocaine. (3) Because the coca leaf is the "natural form" of this notorious stimulant, coca leaf chewing was banned by the United Nations. (4) Morales attended the summit in order to plead with the attendees to accept coca leaf legalization, and to help him continue in the fight of illegal cultivation of these leaves. (5) "We are not drug addicts when we consume the coca leaf," said Morales, before adding, "[t]he coca leaf is not cocaine, we have to get rid of this misconception." (6)

This appearance before the delegates was not the first time Morales had given such a speech. Nearly three years earlier, at a United Nations summit on drugs, Morales "ate a coca leaf in front of [the] delegates" to emphasize that the leaf is not a harmful product and that it actually possesses many benefits to Bolivians. (7) During this performance, Morales attempted to accentuate that the international "ban on coca was a 'major historical mistake.'" (8) At the time, Morales hoped that certain "similarities" between his rise to president, and that of United States President Barack Obama, would encourage President Obama to aid his cause. (9) Yet, the United States has historically been a staunch opponent towards any form of drug legalization and has been at the forefront of efforts to eradicate the coca leaf. (10) In fact, Bolivia has struggled for decades in its attempts to reconcile with the United Nations over the coca leaf issue. Recently, Morales's efforts paid off when the United Nations announced on January 11, 2013, that it would tolerate traditional coca leaf chewing within Bolivia, which then rejoined an international treaty with a reservation. (11)

After Peru and Colombia, Bolivia is the world's third-largest cultivator of coca and the third-largest producer of cocaine. (12) As a result of this notoriety, efforts led by the United States to forcefully eradicate Bolivia's coca crops through legislation and anti-drug policies have been maintained over the years. Despite these efforts, the legislation and treaties that address this contentious issue are not aligned with one another in their substantive language, and at best, offer an ambiguous amalgam of verbiage that attempts to restrict coca leaf production and consumption.

After addressing the legislation relevant to this issue, this Note will encourage Bolivia to export its coca leaves for medical or scientific purposes and argue for export legalization of products legally derived from the leaves. Part One will discuss the importance of the coca leaf to Bolivia and give a brief background of the forced eradication and anti-drug efforts that Bolivia has faced. Part Two will explore the various relevant United Nations legislation, Bolivia's relevant domestic laws, and the troublesome conflicts these regulation attempts have presented. Part Three will briefly discuss the monist and dualist systems of international law, and how Bolivia's monist system approaches the coca leaf issue. Lastly, Part Four will propose a number of suggestions on how Bolivia could alternatively approach this dispute, how the United Nations could help disentangle the conflicting legislation, and ways that further coca leaf concessions could benefit Bolivia and the world while also potentially influencing other drug legislation.

I. THE COCA LEAF'S IMPORTANCE TO BOLIVIA AND THE WAR ON COCAINE

Coca leaves have been an important part of "Boliviafn culture] since pre-Incaic times." (13) Bolivians chew coca leaves for a variety of reasons and use them for cooking, religious activities, and medicinally. (14) Bolivians maintain that the purported benefits of chewing coca leaves include "reducing] hunger pangs," aiding digestion, and increasing strength and endurance, which is essential for working long hours at high altitudes and in cold weather. (15) Coca leaf chewing is a common activity for some Bolivians, akin to the "coffee break or tea time of other cultures." (16) In fact, coca leaf chewing is quite similar to how people chew tobacco. (17) In Bolivia, coca was traditionally cultivated on the steep, elevated slopes of the Yungas region of the Andes Mountains. (18) But cultivation of the crop is now mainly done in the "lower-elevation [of] Chapare Valley." (19)

Coca leaves contain alkaloids, which are chemicals in plants that contribute to many well-known flavors. (20) The most concentrated alkaloid in coca is cocaine. (21) Because the coca leaf serves as the base for cocaine, the international community has taken steps to curb its production. Despite the fact that the effects of cocaine are not very potent when coca leaves are chewed, (22) the United States government has aggressively pressured Bolivia to eradicate its coca since the mid-1990s. These efforts have led to strong resistance from coca growers, known as cocaleros, and have even been met with violent outbursts in the Chapare region where many of the coca farmers are poor. (23) The Bolivian legislation Ley del Regimen de la Coca y Sustancias Controladas, more popularly known as Law 1008, has been in effect since 1988 and regulates the amount of coca that can be cultivated in Bolivia. (24) The law limits the licit amount of coca to be grown in the Yungas area to 12,000 hectares, asserts that the coca grown in the Chapare region is not necessary to meet the demand for traditional use, and calls for the gradual eradication of this excess coca. (25) While the Bolivian government has compensated coca growers for voluntary eradication in the past, it switched to forcible destruction of seedbeds and newly planted coca crops without giving compensation. (26) Though the farmers contended that they are right to defend their livelihood, the Bolivian government insisted that national interest demands forcible eradication and have accused the coca growers union of being manipulated by drug traffickers. (27)

Juan Evo Morales, an Aymara Indian and head of the local coca growers union of the Chaparc region, (28) was elected to the Bolivian presidency in 2006. The Aymara are the indigenous people of Bolivia, who have traditionally consumed and used the coca leaf. During his tenure, Morales has departed from the policy of "forced eradication," while increasing efforts to fight cocaine traffickers and directing "record seizures of cocaine." (29) In addition, Morales has fought to legalize coca leaf chewing in the face of its ban by the United Nations and has taken steps to inform the world of the inconsistent legislation surrounding the coca leaf issue.

II. LEGISLATION RELEVANT TO THE COCA-LEAF ISSUE

A. United Nations Treaties and Declarations

1. The Single Convention on Narcotic Drugs, 1961

The main legislation that Bolivia has opposed is the United Nations Single Convention on Narcotic Drugs, 1961, as amended by the 1972 Protocol Amending the Single Convention on Narcotic Drugs, 1961 (the "Single Convention"). (30) Bolivia believes that the coca leaf is unduly deemed to be a narcotic by the Single Convention, which classified it as a Schedule I drug along with cocaine. (31) The Single Convention is an international treaty that restricts the cultivation, possession, and distribution of specified substances that are categorized by Schedules, except for medical and scientific purposes. (32) Articles 26 and 27 of the Single Convention discuss the coca bush and the coca leaf. Article 26, paragraph 1, applies the provisions relating to the cultivation of opium poppy as laid out in article 23, and article 26, paragraph 2, calls for the destruction of "coca bushes if illegally cultivated." (33) In addition, article 27, paragraph 1, allows for coca leaf use when preparing a flavoring agent that does not contain alkaloids. (34) Bolivia specifically took issue with Article 49, paragraph 1, section C, which temporarily permits coca leaf chewing, as well as Article 49, paragraph 2, section E, which calls for the abolishment of coca leaf chewing within twenty-five years after the Single Convention has come into force. (35) Because the Single Convention entered into force on December 13, 1964, coca leaf chewing should have been abolished in December 1989. (36) Nonetheless, because coca leaf chewing still continues in Bolivia, Bolivia has been violating its international obligation as to this treaty.

2. The 1988 Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances

Bolivia attempted to mitigate what it deemed to be the harsh verbiage of the Single Convention by making a reservation to the 1988 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (the "1988 Convention"). (37) In an unprecedented stance, this Convention required its Parties to criminalize possession for personal consumption. (38) Bolivia signed and confirmed but made a reservation to the Convention, (39) asserting that certain provisions in the 1988 Convention did not apply to the country and notably taking issue with the criminalization of the coca leaf. (40) While the 1988 Convention provides that any measures adopted to eradicate illicit coca must respect human rights and the traditional usage of the coca leaf, it also states (interestingly within the same Article) that countries that do take such measures must still abide by the provisions...