Coca, Cocaine, and the Rights of Indigenous Peoples

• Author: James Kirk
• Position: Senior Sophister LLB Candidate, Trinity College Dublin
• Pages: 77-97

COCA,

COCAINE

AND

THE

RIGHTS

OF

INDIGENOUS

PEOPLES

JAMES

KIRK*

The

coca

leaf

has

been

used

by

indigenous

peoples

in

Latin America

for

centuries and

continues

to

play

a

prominent

cultural

role

in

the

day-to-day

lives

of

those

peoples. Coca

is

also

the raw material

for

cocaine.

However,

the

conversion

of

coca

to

cocaine

is

a

complex

process

and,

as

outlined

below, the two

are

fundamentally different

in

substance

and

use.1

Unfortunately, this

crucial

distinction

is

not

recognised

in

the

instruments

that

comprise

the

UN

legislative

framework

on

narcotics

control.

Under

this

framework,

the

coca

leaf

is

listed, together

with

cocaine

and

heroin,

as

a

narcotic

substance

subject

to

strict

international controls.

The

coca

leaf

was

included amongst

the

most

hazardous classified

substances

based

on

a

series

of

reports

issued

between

1949

and

1954

that

have

since been

criticised

as

scientifically inaccurate

and

culturally

insensitive.

2 The

crass

treatment

of

coca

by

the

narcotics framework

has

had disastrous

consequences

for

the

Andean

countries

in

which

coca

is

grown:

as

a

result

of

the pressure

exerted

on

them

by

this

framework,

and

by

the

United

States

government

as

part

of

its

"War

on

Drugs",

successive

governments

in

Bolivia,

Peru and

Columbia

have

implemented

controversial

coca

eradication

projects which

have

resulted

in

large-scale human

rights

abuses

and

threatened

the

traditional

use

of

coca

by

indigenous populations.'

In

1995

the

World

Health

Organisation,

in

collaboration

with

the

UN

Interregional

Crime

and

Justice

Research Institute, completed

the

most

extensive study

of

cocaine

ever

done.

The

study

emphasised

that the

traditional

use

of

coca

appears to have

no

negative health

effects

and

that it

Senior

Sophister

LLB

Candidate, Trinity

College

Dublin.

See

"Coca

and

Cocaine",

infra,

at 79.

2

Transnational Institute, "Coca

Yes,

Cocaine,

No?

Legal

Options

for

the

Coca

Leaf',

Drugs

&

Conflict Debate Paper

13,

May 2006

www.tni.org/reports/drugs/debate

13.pdf.

3

Ibid;

Dominic

Streatfield,

Cocaine

(Virgin,

2002);

Catholic

Institute

for

International

Relations,

Coca,

Cocaine

and

the

War

on

Drugs (CIR,

1993);

Tim

Madge,

White

Mischief.

A

Cultural

History

of

Cocaine

(Mainstream,

2001); Daniel

Tyler

Cook,

"The Case for

Coca

and

Cocaine:

Bolivia's

March

to Economic Freedom"

13

Minnesota

Journal

of

Global

Trade

57

(2004);

Melanie

R

Hallums, "Bolivia

and

Coca: Law,

Policy

and

Drug

Control"

(1997)

30

Vanderbilt

Journal

of

Transnational

Law

827.

©

2007 James

Kirk

and

Dublin

University

Law

Society

Trinity College

Law Review

serves

positive

therapeutic,

sacred

and

social

functions

among

indigenous

peoples.

4

However,

the study was

never fully

reviewed

and published,

and

the coca

leaf

remains

subject to strict

international

controls

under

the

narcotics

framework.

5

The

position

of

the

coca

leaf

in

international

law

has recently

come

to

the

fore

following

the

election

of

Evo Morales,

Bolivia's

first

president

of

indigenous

descent,

in

January

2006.6

Over

the

past

year,

Morales'

government

has

called for

the

decriminalisation

of

the

coca

leaf,

making

a

formal statement

to this

effect

at

the

UN

Commission

on Narcotic

Drugs

in

Vienna:

We

believe

the

inclusion

of

the

coca

leaf

in

the

1961

Single

Convention, List

I,

as

a

narcotic drug subject

to

control

was

an error

that

deserves

particular

consideration

and

analysis

by

the

UN

Narcotics

Commission,

so

that

in

the future the groundwork

can

be

laid

for

removing

it

from List

I

of

the

Single Convention

on

Narcotic

Drugs.

7

While

it

is

now clear

that

coca

and

cocaine

are fundamentally

different

in

substance

and

use,

it

must

be remembered

that

coca

is

the raw

material

for

cocaine.

International

efforts

to

combat

drug

trafficking

therefore require

some level

of

regulation

of

coca production.

However,

consideration

of

the

importance

of

the

traditional

use

of

coca

to

certain

indigenous

groups raises the

obvious

argument

that

any

regulation

of

the

leaf

should take

due

account

of

such

use,

balancing

indigenous

concerns

with efforts

to

combat

drug

trafficking.

This

argument

demands

careful

consideration

given that

interference with

the

traditional

use

of

coca

by

indigenous

peoples

may

amount

to

a

breach

of

the

rights

of

those

peoples

under international

law.

This

article

examines

the

lack

of

recognition

by

the

narcotics

framework

of

the importance

of

indigenous

use

of

the coca leaf

before

assessing

the

extent

to which

international

human rights

law

can

be

interpreted

as

protecting

such

use.

This analysis

seeks

to

illustrate

potential

inconsistencies

between

the

narcotics

framework

and

a

range

of

international

human

rights provisions,

and

thus establish

whether

modem

human rights

standards require

that

the

framework

be

amended

to

4

Transnational

Institute,

note

2.

'

Ibid.

6

"Enter

the

Man

in

the Stripey

Jumper"

Economist

(print edition),

Jan 19

th

2006.

7 F6lix

Barra,

Vice

Minister

of

Coca

and Integral

Development

during

the

49

th

period

of

sessions

of

the

UN

Commission

on

Narcotic

Drugs, Vienna,

15th March

2006,

quoted

in

Transitional Institute,

note

2,

at

9.

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