ECOSOC adopts procedure for Bolivia’s amendment

Source: Transnational Institute

21 August 2009

By: Martin Jelsma

On July 30th the Bolivian proposal to amend the 1961 Single Convention on Narcotic Drugs by deleting the obligation to abolish the chewingof coca leaf was on the ECOSOC agenda (UN Social and Economic Council). After informal negotiations, the 54 members of ECOSOC decided unanimously to pass the amendment proposal on to the Parties of the Convention for their consideration. They now have 18 months to express any objections or comments on the Bolivian request.

TNI welcomes the Bolivian amendment proposal to delete paragraphs 1(c) and 2(e) of article 49 of the 1961 UN Single Convention where it is explicitly mentioned that “coca leaf chewing must be abolished with twenty-five years from the coming into force of this Convention.” We are pleased with the decision taken now by ECOSOC adopting the draft decision. We also welcome the fact that during the official meeting in Geneva no-one expressed any objections against the Bolivian proposal yet, simply allowing time for countries to think about it. Only the US and Sweden raised their flags, but just to ask clarification from the secretariat about the rest of the procedure. Understandable, because several details about the legal implications of the Bolivian proposal and about the procedure for amending the 1961 treaty do require more explanation.

In strictly legal terms, it can be questioned what the relevance for Bolivia is of the abrogation of these particular paragraphs. Article 49 was originally intended to provide the option of a transitional reservation allowing countries that needed time to comply with the treaty implications. Parties could reserve the right to permit temporarily “(a) The quasi-medical use of opium; (b) Opium smoking; (c) Coca leaf chewing; (d) The use of cannabis, cannabis resin, extracts and tinctures of cannabis for non-medical purposes.” The transitional reservation was limited in time: 15 years for opium and 25 years for coca and cannabis.

For coca that was laid down in paragraph 2(e), the key phrasing that Bolivia now requests to be deleted from the Convention: “Coca leaf chewing must be abolished within twenty-five years from the coming into force of this Convention.” It appears worse in the official Spanish version of the treaty that speaks instead of ‘must be abolished’ about ‘quedará prohibida’, literally ‘will become prohibited’.

However, the Single Convention only asks Parties to consider to ‘prohibit’ drugs that are included in Schedule IV (such as heroin and cannabis; coca leaf is only included in Schedule I), and only “if in its opinion the prevailing conditions in its country render it the most appropriate means of protecting the public health and welfare” (Art. 2, § 5b). Similar phrasing is used for considering the prohibition of cultivation of opium poppy, the coca bush or the cannabis plant (Art. 22, § 1). And the treaty does not require personal use (the chewing in this case) to be made a punishable offence. ‘Abolishing’ is something that could be pursued also by other means, such as education and prevention measures, it does not necessarily imply legal measures in the sense of ‘prohibiting’.

As it still took some years after 1961 for the minimum required number of countries to ratify the treaty, as explained in the Commentary (here using the same confusing language as in the Spanish version of the treaty): “coca leaf chewing must be prohibited by 12 December 1989.”

Bolivia, though represented at the Conference in 1961, initially did not sign the Single Convention at all. Bolivian accession to the treaty only happened in 1976, under the military dictatorship of Hugo Banzer who had no interest to make use of the right to ask for this transitional exception. So Bolivia, in fact, was under legal obligation to abolish (or ‘prohibit’?) coca chewing immediately. Moreover, even if the mention of coca leaf chewing is deleted now from the transitional reservation paragraph 49 of the convention, Bolivia would still be bound by the overall treaty obligation to “limit exclusively to medical and scientific purposes” any substance included in Schedule I attached to the convention, which includes the coca leaf.

Peru, the other obvious country to consider making a reservation for coca chewing, did sign immediately in 1961 and ratified in 1964, but also without a transitional reservation. The option provided under article 49 was used only for opium and cannabis by Bangladesh, India, Pakistan, Nepal and Burma (to “allow addicts in the Shan State to smoke opium for a transitory period of 20 years” and to “produce and manufacture opium for the above purpose”). So, what is the relevance of the Bolivian request to delete these particular paragraphs?

Firstly, these paragraphs are the only text in the treaty that spells out that one of the objections of the 1961 Convention is to abolish (or even prohibit) the traditional use of coca chewing. All other mentions of control of coca in the treaty (for example the articles dealing with coca bush cultivation) can also be interpreted to aim to prevent the production of cocaine by placing controls on the raw material used in its production. For that reason alone, Bolivia is fully right in its assertion that this text has to disappear.

The idea that coca chewing needed to be abolished was the result of remnants of a colonial attitude and disregard for other cultures that was still prevalent at the time of negotiating the 1961 treaty. Any country considering now to express objections to the Bolivian amendment will have to argue it very carefully if they do not want to be seen to simply replicate the cultural insensitivity so common half a century ago and nowadays generally regarded as a disgrace, not to mention a violation of the rights of indigenous peoples.

Secondly, realising the mistake they had made with the 1961 Convention, in an attempt to still obtain legal recognition for traditional uses, Peru and Bolivia negotiated paragraph 2 of Article 14 into the 1988 Convention (just before the transitional period neither had applied for ended), saying that any measures adopted “shall respect fundamental human rights and shall take due account of traditional licit uses, 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 … of the previous international drug control conventions.”

Negotiations were actually going on in two separate conference rooms at that very moment, and when the US delegation became aware that the text about ‘traditional licit uses’ was going to be adopted in the one room, they quickly introduced in the other room a preceding paragraph in the same article to neutralise it. The resulting legal ambiguity could not be more obvious, as countries are now under the dual obligation to abolish/prohibit coca leaf chewing while ensuring that all measures respect human rights and take due account of traditional licit use.

Thirdly, since February 2009, coca is recognized as a ‘cultural patrimony’ in the new Bolivian Constitution adopted by referendum with a clear 61% majority (90% voter turn-out), so obviously the country can no longer live with an international treaty that explicitly intends to end the very existence of coca. If the amendment is not accepted, Bolivia will have no other option than to denunciate the 1961 Convention and re-access with a clear reservation. Adding a reservation after accession is not possible, so they would have to first formally withdraw and then sign on again with a similar reservation they made upon signing the 1988 Convention. Trying first to amend the treaty with the consent of the other Parties, is taking international law serious. Procedurally it is the most correct path to follow, as recommended by the INCB.

Fourthly, the INCB has more or less forced Bolivia to take this step since the Board is calling on them repeatedly to abolish the use of coca leaf, including by referring to this particular paragraph of the 1961 treaty. In its 2005 Annual Report, for example, the INCB reminded countries 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.”

The following Annual Report emitted a clear warning to the governments of Bolivia, Peru and Argentina that allowing coca leaf consumption (Argentina also allows the chewing of coca leaf explicitly by decree) is in conflict with the 1961 Single Convention. Consequently, countries were asked to adapt their national legislation back in line with the conventions. Bolivia then became 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.”

When then INCB President Emafo presented this report at a press conference in Vienna in early 2007 he made it clear that in his view Bolivia’s intention to ‘revalue’ the coca leaf and promote its licit usage would be in breach of the international 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.”

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.” Two INCB representatives did still visit Bolivia in September 2007 but it did not lead to a change in the Board’s position. The logical response from President Evo Morales was to send a letter to the UN Secretary General formally requesting the amendment now under consideration.

* See also: Speech Morales at the 2009 CND

And finally, the amendment procedure provides a useful ‘warming up’ for countries to start thinking about the coca leaf and its licit uses, as they have to define their position about this Bolivian request. The procedure does not require them to express explicit support for the amendment, only to decide if they see grounds to file a formal objection to it. Our hope is that no-one will, as we do not see a single valid argument for the rejection of the proposed amendment.

If the proposed amendment has not been rejected by anyone within eighteen months, it automatically enters into force. In case objections are submitted, however, ECOSOC will have to decide again, in the light of the comments received, whether a conference of the Parties needs to be convened to negotiate the amendment. Other options are less clear, but in case only few and minor objections are raised, the Council could probably decide to still accept the amendment in the understanding it will not be applicable to those who explicitly rejected it. If more and substantial objections are tabled, the Council could also decide that the proposed amendment is rejected. In the latter case, a dispute arises that could ultimately “be referred to the International Court of Justice for decision” (Art. 48, § 2).

The discussion about it will help prepare the ground for the more complicated procedure for ‘unscheduling’ the coca leaf, removing it from Schedule I of the 1961 Convention. That procedure will start later on, with another separate formal notification by Bolivia to the Secretary General, passing by a recommendation of the WHO Expert Committee and brought to the agenda of the UN Commission on Narcotic Drugs for a decision by majority vote most likely no sooner than 2012. Only if that second procedure is successful, will current strict controls on the use of coca in its natural form be lifted and will the legal ambiguities finally be resolved.

Martin Jelsma – TNI

Republish