Bolivia and Coca: Law, Policy, and Drug Control

Hallums, Melanie R., Vanderbilt Journal of Transnational Law

I. INTRODUCTION

Centuries mark the history of the relationship between the Bolivian people and coca, the principal ingredient of cocaine. Ancient Indian traditions used the coca leaf in many facets of cultural life, yet it never gained the notoriety of the modern scourge of cocaine. United States-led international concern over illicit narcotics trafficking has transformed Bolivian foreign relations, economics, and internal politics, and it continues to shape Bolivia's future and reflections about its past.

Bolivia is one of the Andean nations targeted by the U.S. "War on Drugs,"(1) escalated by Presidents Reagan and Bush.(2) As cocaine became a problem for the United States, so too did it become a problem for Bolivia. Since the 1980s, the United States has remained heavily involved in fighting an international "war" against drugs,(3) especially against cocaine in the Andean nations of Bolivia, Peru, and Colombia.(4) Since the advent of the "war," however, drug supplies have increased substantially, both in the United States and in the world market. The international drug trade generates an estimated $400 to $500 billion annually.(5) From 1984 to 1994, coca production nearly doubled, although the United States spent billions of dollars on narcotics-control assistance to Bolivia, Colombia, and Peru.(6) While the Bolivian government has cooperated with the U.S. anti-drug struggle,(7) coca production has not diminished. Meanwhile, the problem of U.S. cocaine consumption continues to demand a solution.(8)

While some critics believe the international anti-drug effort is at a standstill, legal mechanisms remain in place and new projects continue.(9) Although the Clinton administration focuses more resources than previous administrations on treatment rather than enforcement, substantial U.S. funding of overseas source country programs still supports the war against drugs in Latin America. The Andean nations of Peru, Bolivia, and Colombia continue to lead the world in cocaine production,(10) while the United States leads the world in cocaine consumption.(11) The United States also leads the international community in protesting the illicit production and trafficking of cocaine, and the supply-side international strategy still garnishes support among the U.S. public.(12)

Bolivia's situation is representative of all the Andean countries' struggles with the cocaine trade. This Note uses Bolivia as a model to evaluate the legal mechanisms available to address the international drug trafficking problem. Part II traces the history of coca production, use, and legislation in Bolivia to shed light on part of the backdrop against which the international drug effort must be viewed. Part III explains the international involvement in Bolivia, including the international drug problem and the United Nations (hereinafter U.N.) response to it. Part IV evaluates this hemisphere's action against cocaine trafficking, focusing on U.S. involvement, bilateral treaties, and regional agreements. Part V suggests possible alternatives in law and policy for addressing the coca issue in Bolivia. The current international approach to cocaine trafficking is failing. This Note concludes that only a multilateral approach, with the greatest involvement by the Andean nations, will approach the necessary regional solution to the drug crisis.

II. COCA IN BOLIVIA

To understand the complex framework of Bolivia's coca production and subsequent international concerns over it, coca itself must be considered as one factor among many. Bolivia's cultural, political, and economic traditions have allowed the coca industry to amass a strength rivaled only by international demand for coca and cocaine. Today, regulation of coca production permeates Bolivia's international relations.

A. Does Bolivia Have a Cocaine Problem?

This question can be answered both in the affirmative and the negative. Many Bolivians would respond that Bolivia has the problem of pressure imposed by the United States to curb coca production because of the U.S. cocaine epidemic. Domestically, however, cocaine abuse does not appear to pose a serious problem for the Bolivian population.(13) Yet, narco-trafficking activities threaten Bolivia's political and economic stability.

Bolivia is the poorest country in South America, and, among Latin American countries, its poverty level is second only to that of Haiti.(14) With a per capita income of $770 a year, many Bolivian farmers have discovered a profitable industry in coca production, which yields about $475 an acre annually.(15) In contrast, crops such as bananas and grapefruit average from $35 to $250 a year, if buyers exist.(16) Although coca has been cultivated for centuries, the illicit coca phenomenon in Bolivia has existed, arguably, for only the last couple of decades.

B. The Evolution of Coca in Bolivia

Coca has been used in Bolivia for centuries, but not in the concentrated form of powder or rock cocaine that has given the coca leaf international notoriety in the last twenty years. Rather, ancient rituals and traditions involved chewing the coca leaf (acullico)(17) or drinking it in the form of tea (mate de coca). The Inca kings and nobility chewed coca leaves and the practice became widespread, especially among highland Bolivians and Peruvians.(18) Coca remained a valuable commodity throughout the Spanish invasion in the sixteenth century.(19) During colonial times, coca was used to pay slaves in the tin and silver mines.(20)

Many traditions involving the coca leaf continue among the indigenous Bolivian populations, which consist mainly of Aymara and Quechua Indians.(21) Coca remains an integral part of Andean Bolivian culture. The leaf is used for medicinal purposes,(22) as an appetite and thirst suppressant,(23) to counter the effects of altitude sickness,(24) and often as the central focus of religious and cultural rituals.(25) In most rural areas of Bolivia, workers carry little pouches (k'intus) of coca leaves in their pockets.(26) Chewing coca is considered an important social skill; adults gather to chew it after meals and pause for coca breaks.(27) Coca serves an economic role even without the cocaine industry, functioning as a medium of exchange and as a deferred payment in many parts of the Andes.(28)

Throughout the 1970s, however, the cultivation of coca shifted from mostly traditional subsistence farming to massive export-oriented coca production. This shift was not a spontaneous change in agricultural practices on the part of Bolivian coca farmers (cocaleros); rather, it resulted from a combination of political, economic, and social factors. Politically, Bolivia is one of only four nations in Latin America to have sustained a popularly based revolution.(29) In 1952, the political group known as the Movimiento Nacionalista Revolucionario (National Revolutionary Movement) gained power after an urban revolt.(30) The new government made significant changes that affected the country in many ways. The government nationalized about eighty percent of Bolivia's main industry, tin. It also implemented comprehensive agrarian reform. Broad agrarian reform efforts divided the old hacienda system and distributed land to Indian farmers.(31) As the old land structure collapsed, the working and peasant classes became politically mobilized.(32) Increased political power and massive income redistribution allowed these classes to participate more in Bolivia's political life and exert more pressure on the government.(33)

Although the central government increased its formal powers after the 1952 revolution, the state remains weak against internal pressures.(34) Bolivia's weak central government can be traced historically to the Spanish colonial system and, more recently, to constant threats to its external and internal sovereignty.(35) While the Bolivian constitutional structures reflect the Spanish tradition, in which most political power resides in the chief executive and the administrative tools of the state, these branches have not been very powerful in Bolivia. The 1952 revolution furthered the lack of central political authority in Bolivia.(36)

The weakness of Bolivia's central government can be explained by various factors. Relative to its size, Bolivia's overall population is small, mostly rural, and fragmented along racial, ethnic, and cultural lines. Also, Bolivia's dramatic topography divides it into three distinct regions, enhancing geographic and regional diversity, as well as inter-regional rivalry.(37) The lack of strong state institutions, coupled with regional diversity and autonomy in parts of Bolivia, arguably set the stage for later drug production to prosper.(38)

Economic factors also contributed to the rise in export-oriented coca production in Bolivia. Since the Spanish colonial era, Bolivia's economy has been based on the export of minerals to foreign countries.(39) The decrease in international market prices for tin and natural gas in the 1970s and 1980s led to the decline of the highland economy and to high rates of unemployment. Many workers migrated from the highlands to the Chapare, where coca cultivation offered jobs and profits.(40) During the 1980s, the illegal coca economy surpassed the traditional legal coca market, launching Bolivia into the international drug trade.(41)

Three areas of Bolivia yield most of its coca: the Yungas in La Paz, the Chapare in Cochabamba, and the Yapacani in Santa Cruz.(42) Ideal coca-growing climates and extreme poverty in these rural areas make them prime regions for coca production. Continuing rural poverty, combined with a lack of economic opportunities in the cities, perpetuates coca production among rural farmers.(43) About forty-two percent of Bolivia's seven million people live in rural areas, and of these, an estimated eighty percent suffer extreme poverty, according to the U.N. Development Program.(44)

Primarily in response to U.S. pressures, Bolivian police have recently escalated enforcement against illegal coca cultivation.(45) But the willingness of Bolivia's government to cooperate with the United States by punishing the coca growers has resulted in violent confrontations in the Chapare.(46) Many coca growers not only claim the right to grow coca because the plant was sacred to their ancestors, but also claim the right to grow coca to earn a living.(47) Coca growers have formed a large organized political force and frequently protest government efforts to eradicate or reduce coca cultivation.(48) Bolivia allows legal coca production outside the Chapare, demonstrating the government's recognition and acceptance of traditional licit uses of coca. Most coca is grown in the Chapare, however, where the government has declared most coca plants illegal.(49)

C. Regulation of Coca in Bolivia

Bolivia's government has found international cooperation with drug enforcement efforts a political and economic necessity. Politically, Bolivia needs to maintain international favor, especially with the United States. As a landlocked country and a relatively new and fragile democracy,(50) Bolivia cannot afford to lose international esteem, already diminished since the advent of cocaine trafficking concerns. Furthermore, the economic situation in Bolivia is bleak. Still recovering from the debt crisis of the 1980s and dependent on foreign aid for agricultural development and other economic revitalization programs, Bolivia has passed anti-drug laws to satisfy international demands.

1. The 1961 U.N. Single Convention: Coca's Demise

The 1961 U.N. Convention on Narcotics(51) developed a set of norms and provisions to limit narcotic use to medical and scientific purposes. The Convention said that "addiction to narcotic drugs constitutes a serious evil for the individual and is fraught with social and economic danger to mankind."(52) The list of substances subject to control included both cocaine and the coca leaf. The traditional practice of chewing coca leaves was defined as an "undue use of drugs."(53) The Convention defined illicit traffic as "cultivation or trafficking in drugs, contrary to the provisions of this Convention"(54) and production as "the separation of opium, coca leaves, cannabis and cannabis resin from the plants from which they are obtained."(55) Thus, cultivating coca was itself deemed to be illicit trafficking, and the harvesting of coca was defined as illegal narcotics production.

The Convention stated that "coca leaf chewing must be abolished within twenty-five years from the coming into force of this Convention."(56) The Convention left individual countries to enforce the norms, but suggested eradication.(57) After ratifying the Convention, Bolivia passed a narcotics law in 1962, which did not include coca leaves as a narcotic, perhaps signifying resistance to international concern over coca. Later that year, however, a government decree ordered a census of coca plantations and prohibited new plantations.(58) In conformity with the 1961 Convention, the Inter-Ministerial Narcotics Commission began a research project in 1966 to fight cocaine trafficking and to reduce and gradually eradicate coca plantations by replacing coca with other crops.(59) The research project also sought to reduce coca leaf chewing and to fight drug addiction within Bolivia, issues that have received less attention than coca production in recent years.(60)

Bolivia created the National Office for the Control of Dangerous Substances (hereinafter DNCSP) in 1973, following the norms of the 1961 Convention.(61) The United States also began to support Bolivian coca control in the 1970s. In 1974, as its own demand for cocaine began to increase, the United States financed an $8 million pilot project to determine the feasibility of a long-term plan to reduce coca production in Bolivia.(62) In 1977, 1978, and 1979, the United States and Bolivia signed several bilateral agreements in which the United States gave financial assistance for the DNCSP to combat cocaine production and trafficking.(63) In 1979, the Bolivian government passed a new law that failed to list coca leaves as illegal narcotic, but did prohibit new coca plantations and the expansion of registered ones.(64) Thus, although Bolivia complied with some provisions of international law, it resisted enacting anti-coca laws domestically.

On November 15, 1981, the Bolivian government enacted a law to Control and Fight Dangerous Substances, which allowed the Chapare-Yungas Development Project (hereinafter PRODES) to offer legal coca producers long-term credits and technical support to substitute other crops of similar profitability.(65) The law also established a state monopoly on the buying and selling of coca leaves and prohibited all coca plantations outside the departments of La Paz and Cochabamba.(66) The law did not reduce coca production, however. The state-controlled markets gathered only a small amount of legal coca and encouraged corruption and abuse, while offering lower prices to producers than the illicit traffickers' rates.(67) In 1985, the Bolivian legislature passed new Regulations for the Control of Dangerous Substances. The new regulations recognized all drugs listed in the 1961 Convention, including coca plants and leaves.(68)

2. Ley 1008: The Law of Foreigners

The most prominent Bolivian anti-drug law, the Coca and Controlled Substances Law, Ley 1008,(69) was enacted by the Bolivian legislature on July 19, 1988. Ley 1008 was written with the assistance of the United States Agency for International Development (hereinafter USAID). The United States sought to ensure that narco-trafficking would be defined as a crime in Bolivia and that the growth of coca leaf cultivation would be stopped.(70) Although Ley 1008 was enacted largely in response to U.S. pressure to prohibit the production and marketing of coca, the law also formally recognizes the licit uses of the coca leaf.

Significantly, Ley 1008 first states that coca is a natural product from the subtropical departments of La Paz and Cochabamba, with ancient origins that derive from pre-Colombian Bolivian history.(71) The law also allows for the cultivation of the coca leaf for agricultural and cultural use, as wen as for the traditional use of coca for medicine and rituals in Andean communities.(72) Ley 1008 explicitly differentiates between the natural state of coca, which produces no known negative health effects, and coca that has been chemically transformed into the cocaine alkaloid, which has dangerous psycho-physical and biological health consequences and is used in the criminal drug trade.(73)

Under Ley 1008, licit consumption of the coca leaf includes traditional social and cultural practices of the Bolivian population, such as the acullico (coca-chewing) and medicinal and ritualistic uses.(74) The production of the coca leaf to meet the legal demand is defined as necessary production, and subsistence farmers who cultivate coca for personal use are defined as legal producers.(75) Production surpassing the necessary amount is defined as excess production.(76) Conceding to U.S. demands, the law also requires the gradual eradication of coca through voluntary and forced removal of plants. While the law aims at annual targets of eradication of coca hectares, it requires international development assistance to realize these goals.(77) The law therefore recognizes the need for foreign aid not only to implement this law, but also to combat the economic conditions perpetuating the coca and cocaine trade in Bolivia.

In an attempt to tame the domestic tensions arising from domestic and international attacks on coca leaf cultivation, the anti-drug law includes a key concept of the agreement signed between the government and the coca growers in June 1987.(78) Ley 1008 states that all coca crop substitution will be accomplished gradually. Crop substitution will be implemented in conjunction with socio-economic development programs in the traditional and surplus-in-transition zones.(79) The law defines as illicit all uses of the coca leaf destined for the chemical production of cocaine.(80)

Ley 1008 establishes a new system outside the normal criminal process for prosecuting traffickers, producers, and users of drugs,(81) as well as a licensing process for legal coca marketing.(82) Ley 1008 creates a separate system of justice that has sole jurisdiction over narcotics offenses.(83) As one of its primary objectives, the legislation seeks to hasten the prosecution of narcotics offenses. The length of investigations by the police and prosecutors, as well as the lengths of trials, closing argument periods, and sentencing proceedings, were all reduced.(84) Under Ley 1008, accused drug offenders remain in jail during the entire judicial process.(85) Automatic pre-trial incarceration, coupled with mandatory sentencing provisions,(86) allows prosecutors and judges almost no discretion in the prosecution of drug offenders. Thus, the enforcement mechanisms of Ley 1008 have been criticized as severe.

Some commentators believe Ley 1008 contains unconstitutional provisions on its face(87) and contributes to possible human rights violations as applied.(88) Bolivia's prisons are filled with drug offenders, the majority of whom are very poor.(89) Human rights activists assert that the underclass is being discriminated against through the application of Ley 1008 because the poor are disproportionately represented in the prisons.(90) Suggested reforms for Ley 1008 include keeping the cocaleros and pisa-coca(91) out of prisons. Because farmers who cultivate coca and other …

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Publication information: Article title: Bolivia and Coca: Law, Policy, and Drug Control. Contributors: Hallums, Melanie R. - Author. Journal title: Vanderbilt Journal of Transnational Law. Volume: 30. Issue: 4 Publication date: October 1997. Page number: 817+. © 1999 Vanderbilt University, School of Law. COPYRIGHT 1997 Gale Group.

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