La norma que prohibe la masticacion de la hoja de coca: del sistema internacional al Estado colombiano.
| Autor | Fernandez, Julian |
| Cargo | Ensayo |
| Páginas | 61(23) |
The Norm Prohibiting the Chewing of Coca Leaf: From the International System to the Colombian State
A norma que proibe a mastigacao da folha de coca: do sistema internacional ao Estado colombiano
Introduction
August 7, 2012 was inauguration day for Colombian President Juan Manuel Santos. In an unprecedented event for the country, the events of the day began on the peaks of the Sierra Nevada de Santa Marta mountain range with a visit by the new head of state to the mamos--the spiritual leaders--of the Kogi and Arhuaco indigenous peoples. In keeping with their traditions, the natives chewed a mixture of coca leaves and an alkaline solution as they spoke to the new president. This activity is a critical element in our research. Indeed, under international law, coca leaf must be used only for medicinal or scientific purposes; any other use is considered deviant and strongly prohibited. Thus the natives were violating treaties signed by the Colombian state. The native tradition of coca consumption, however, did not seem to embody illegality in the eyes of the president or his delegation.
Since the 1961 Convention on Narcotic Drugs, coca leaf has been classified as one of the most strictly controlled substances. The coca plant is distinguished from other substances, in the sense that it has been used for centuries by many indigenous Andean communities as a source of energy on long work days and for medicinal and religious purposes. These uses are not contemplated within the text of the Convention.
In fact, the authors of the 1961 Convention on Narcotic Drugs, following the conclusion of the report of the Commission for the Study of Coca Leaf set up in May 1950, explicitly required signatory States to abolish the chewing of coca leaf within twenty five years of the treaty's entry into force. This took place in 1964, making 1989 the deadline to eradicate the traditional chewing of coca leaf among members of indigenous cultures. Signatory States were required to implement public policies to fulfill their treaty obligations and eliminate this ancestral indigenous practice, a goal that was not achieved. On the contrary, the increasing participation of indigenous communities in Colombia's political life led to a social movement aiming to explicitly extend the legal use of coca leaf to include traditional native practices.
We are also particularly interested in the 1988 United Nations Convention Against Illicit Traffic in Narcotics Drugs and Psychotropic Substances reached to provide States with more tools to fight the increasing drug trafficking of the 1980s. Its main points included the struggle against money laundering, reforming extradition policies, and allowing for the confiscation of property. An article declaring respect for native traditions was incorporated into the 1988 Convention within the historical context of strict provisions to fight the illicit use of drugs.
Although the international framework for drug control, which is the object of our study, refers to the prohibition of coca leaf chewing, our understanding of the international drug control regime must go further than the act of chewing coca. For Andean natives to chew coca, a preliminary process must have taken place: the coca had to be planted, harvested, dried, and often transported. We must understand these steps in the context of the international drug law.
This paper's conceptual framework is based on International Relations Theory (IRT). More precisely, we are concerned with the constructivist approaches in which a norm is considered as a "collective agreement on appropriate behavior, which leads to both changes in identities and interests" (Risse & Sikkink, 1999, p. 194) and for it to be qualified as international, it must be based on a problem of a transnational nature. In our case: drug control. Reviewing the literature, one finds that Acharya (2004) divided the diffusion of ideas and norms into two broad categories. The first category focuses primarily on the international level and norms considered universal. The principal actors who propagate these types of norms are transnational. They may be moral entrepreneurs, international institutions, or epistemic communities. Norms become internalized by international institutions that teach new behaviors to the States (Finnemore, 1993). However, the role of national agents in the adaptation of international norms is disregarded, and a dichotomy is created between the right international norm and the poor local norms. The second category regards the role of local agents and the congruence that may exist between international and local norms. Different concepts are brought to the discussion to understand the process of internalization: cultural organization, the degree of institutionalization, and cultural match (Checkel, 1999). The monitoring of the norm after it has been incorporated, however, does not seem to be a primary concern.
We believe that the prohibition of coca leaf chewing provides an opportunity to analyze the adoption of a norm, considering not only the precise historical moment in which it is established, but also the norm's reconstruction over time within the adopting State. To examine how the prohibition of coca leaf in Colombia has evolved, we will rely on different theoretical approaches that can be applied at precise historical moments, but are later confronted with the conceptual reconstruction that takes place within the State. In the international arena, the prohibition of coca leaf chewing has been in force for more than 50 years without any change, but this stability in the international system is not necessarily reflected within the States. The State can be easily reconfigured as a result of domestic tensions or the capacity of local agents to modify a norm, while at the international level, the consensus to modify a prohibition requires the mobilization of a large number of units, which, in the case of coca leaf, include a limited number of countries with populations that use coca, including Peru, Bolivia, Colombia, and Argentina.
The Colombian case has some characteristics that differ from those of the other countries with native communities that use coca leaf. Unlike Bolivia and Peru, Colombia has a small indigenous population; only around 2% to 3% of the total population is of native origin. This small percentage might lead us to think that the adoption of the international prohibition of coca leaf would not meet with great resistance from local actors. The 1991 Colombian Constitution, however, grants indigenous peoples the right to self-determination. This means that they enjoy autonomy with respect to political, economic, religious, and legal issues within their designated territories. This gives them the legal basis to demand the reformulation of international norms that affect their traditions, including norms affecting the use of coca leaf. Not all of Colombia's native communities traditionally use coca leaf, however. We have chosen to work in this article with the Nasa people, in the department of Cauca. They have, in fact, been one of the most belligerent groups since the Spanish colonization, and they have been fighting to preserve the traditional use of coca leaf. They were also the founders of Colombia's national indigenous associations.
This text is divided into two sections. In the first, it deals with our understanding of how the prohibition of coca leaf chewing in the international system was constructed. We want to reconstruct the origins of the law by identifying the key actors with fundamental roles in the prohibitionist approach and in the construction of the binding legal mechanisms that have been put in place to preserve the continuity of the prohibition (Bewley-Taylor, 2001; Dudouet, 2009). The second section addresses the way in which the international norm is adopted in the Colombian legal system. The Colombian case integrates the concept of multicultural societies into the sociology of norms, with the added particularity of having more than one legal system. Conflicts between traditional indigenous uses of coca and the failure of public policy against drugs have led some Colombian non-state actors to advocate expanding the legal use of coca leaf beyond medicine and science, allowing for a reconstruction of the norm within Colombian law.
The construction of the coca leaf chewing prohibition in the international system
The 1961 Convention: beginning of the prohibition
Why does a practice that is mainly restricted to three Andean countries become a subject of international concern? To try to answer this question, we rely on the framework of IRT in which a norm is qualified as international if it is built around a problem with transnational reach. Ethan Nadelmann (1990) addresses the topic of internationalization by analyzing global prohibition regimes. He demonstrates that certain behaviors such as incest, which deeply shock certain societies, are not necessarily matters of international interest, and the regulation of such matters continues to be domestic. Once an undesirable behavior goes beyond the capacity of the State to control it, however, it becomes the subject of an international...
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