Rights of Indigenous Peoples and The Int

Goettingen Journal of International Law 5 (2013) 1, 287-324 287
Rights of Indigenous Peoples and the

International Drug Control Regime: The Case of
Traditional Coca Leaf Chewing
Sven Pfeiffer*
Table of Contents
A. Introduction ........................................................................................ 288
B. Coca Leaf Chewing Under the International Drug Control Regime.... 289
C. The Right of Indigenous Peoples to Practice Their Customs and
Traditions Under International Law .....................................................292
D. Coca Leaf Chewing and Rights of Indigenous Peoples
Under Domestic Law in the Andean Region ........................................296
E. The Case of Bolivia ..............................................................................297
F. Resolving the Normative Conflict ....................................................... 308
I. The Relationship Between the Prohibition on Coca Leaf
Chewing and the Rights of Indigenous Peoples to Their
Customs and Traditions .................................................................. 308
1. Relevant Rules of the International Drug Control Regime .......... 309
2. Relevant Rules of International Human Rights Law.....................313
II. Underlying Reasons for Tension Between Indigenous
Peoples’ Rights and the International Drug Control Regime ............ 318
G. Conclusion ...........................................................................................323
* LL.M. (International Law), University of Bristol, UK; Associate Expert, United Nations
Office on Drugs and Crime (UNODC), Vienna, Austria. The article is written in the
author’s personal capacity.
doi: 10.3249/1868-1581-5-1-pfeiffer
288 GoJIL 5 (2013) 1, 287-324
Abstract1
This article discusses whether there is a normative conflict between the rights of
indigenous peoples and the international drug control regime. Treaty obligations
to abolish coca leaf chewing might clash with the indigenous peoples’ right
to practice their customs and traditions in States of the Andean region where
indigenous peoples have practiced coca leaf chewing for centuries. Taking into
account the manner with which States have addressed this issue, the article focuses
on the case of Bolivia and its recent attempt to amend the 1961 Single Convention
on Narcotic Drugs. It is argued that the normative conflict can be resolved or
at least avoided by applying the methods of treaty interpretation, though only
at the expense of indigenous rights. Options to change the international drug
control regime to ensure indigenous rights are not only limited by the common
interest in preserving its integrity, but also by the negative impact this could
have on treaty relations.
A. Introduction
Concerns for the rights of indigenous peoples recently led the Plurinational
State of Bolivia2 to propose an amendment to and later withdraw from the
1961 Single Convention on Narcotic Drugs (1961 Convention), which begs the
question of whether there is a normative conflict between the international drug
control regime and indigenous rights. This article considers the human rights
of indigenous peoples under international law in a situation where coca leaf
chewing is part of their customs and traditions and at the same time prohibited
under the international drug control regime. It discusses a conflict that seems to
exist between relevant rules of the two bodies of law at the conceptual level and
offers an interpretation of how it can be resolved. Its focus is the case of Bolivia,
the only country that has sought to address this normative conflict by taking
action under both domestic and international law.
The arguments presented here are built on the conviction that international
law is a system in which rules do not exist in a vacuum but must be seen in
relation to each other. Sections B and C of the article outline those provisions
under the international drug control regime and international human rights
law that appear to be in conflict with each other with regards to the rights of
1
All views expressed in this article are those of the author and do not necessarily represent
the views of, and should not be attributed to, UNODC or the United Nations in general.
2
Hereinafter: Bolivia.
Rights of Indigenous Peoples and the International Drug Control Regime 289
indigenous peoples. The following sections D and E consider how the issue
of coca leaf chewing as a custom or tradition of indigenous peoples has been
addressed by States of the Andean region,3 in particular Bolivia, given their
international drug control obligations. Section F discusses how the normative
conflict can be resolved by applying the methods of treaty interpretation. It
examines the conflicting values and interests that inform the rules in question,
and concludes that a solution within existing international law would not be
favorable to human rights. Efforts to ensure indigenous rights, on the other
hand, would require changes to the international drug control regime, which are
not easily achievable and may have far reaching consequences.
With its limited focus on a normative conflict, this article will not address
human rights issues resulting from the implementation of the international drug
control regime. Such issues have been exhaustively addressed elsewhere and relate
to the questions whether domestic enforcement measures meet human rights
standards or whether international drug control policy makers give sufficient
attention to human rights.4
B. Coca Leaf Chewing Under the International Drug

Control Regime
The international drug control regime has been treaty-based since its
inception in the early 20th century.5 Today, there are three main international
drug control conventions,6 which oblige States parties to exercise control over
narcotic drugs and psychotropic substances while ensuring their availability
for medical and scientific purposes, and to combat their illicit trafficking.
Substances subject to international control are listed in schedules annexed to the
conventions, which can be modified according to the procedures foreseen by the
3
Argentina, Bolivia, Chile, Colombia, Ecuador, Peru, and Venezuela.
4
See, e.g., D. Barrett et al., ‘Recalibrating the Regime: The Need for a Human Rights-Based
Approach to International Drug Policy’ (1 March 2008), available at http://www.hrw.org/
legacy/pub/2008/hivaids/beckley0308.pdf (last visited 15 June 2013).
5
T. Pietschmann, ‘A Century of International Drug Control’, 54 Bulletin on Narcotics
(2007) 1 & 2, 1, 1.
6
Single Convention on Narcotic Drugs, 30 May 1961, 976 UNTS 105 [1961 Convention];
Convention on Psychotropic Substances, 21 February 1971, 1019 UNTS 175; United
Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 20
December 1988, 1582 UNTS 95 [1988 Convention].
290 GoJIL 5 (2013) 1, 287-324
conventions. However, specific treaty provisions apply to the coca leaf, cannabis
and opium,7 which can only be modified by amending the conventions.
The 1961 Convention as amended by the 1972 Protocol Amending the
Single Convention on Narcotic Drugs8 defines coca leaf as “the leaf of the coca
bush except a leaf from which all ecgonine, cocaine and any other ecgonine
alkaloids have been removed” and places it in Schedule I,9 together with other
drugs like cocaine, heroin, and morphia. The drugs in Schedule I are subject
to the measures of control listed in Article 2 (1) of the Convention, which
aim at limiting “exclusively to medical and scientific purposes the production,
manufacture, export, import, distribution of, trade in, use and possession of
drugs”.10 Among other measures, States parties to the 1961 Convention are
required to provide statistical data on the production and consumption of
drugs,11 limit their manufacture and importation,12 enforce a license system for
their trade and distribution,13 and prohibit the possession of drugs.14 In addition,
coca leafs are subject to the specific system of controls in Article 26, which
requires States parties to establish a national authority responsible to limit and
supervise the production of coca leafs for licit medical and scientific purposes
and to uproot all coca bushes which grow wild. Article 27 further allows States
parties to use coca leaves for the preparation of a flavoring agent, which shall not
contain any alkaloids (such as cocaine), and to permit the production, import,
export, trade in and possession of such leaves to the extent necessary for such
use.
The 1961 Convention, in Article 49, allowed States parties to reserve the
right to temporarily permit coca leaf chewing by providing as follows:
7
Additional measures of control for opium are established by Art. 19 (1) (f ) and Arts 21bis,
23 & 24 of the 1961 Convention; for the coca leaf by Arts 26 and 27 and for cannabis
by Art. 28 of the 1961 Convention. The opium poppy, the coca bush, the cannabis plant,
poppy straw, and cannabis leaves are subject to the control measures prescribed in Art. 19
(1) (e), Art. 20 (1) (g), Article 21bis and in Arts 22 to 24; 22, 26 and 27; 22 and 28; 25;
and 28, respectively.
8
Protocol Amending the Single Convention on Narcotic Drugs, 1961, 25 March 1972, 976
UNTS 3 [1972 Protocol].
9
1961 Convention, Art. 1 (f ), supra note 6, 107.
10
Ibid., Art. 4 (c), 111.
11
Ibid., Arts 19 & 20, 117-118.
12
Ibid., Art. 21, 118-119.
13
Ibid., Art. 30, 123-124.
14
Ibid., Art. 33, 126.
“1. A Party may at the time of signature, ratification or accession

reserve the right to permit temporarily in any one of its territories:
[…]
c) Coca leaf chewing;
[…]
e) The production and manufacture of and trade in the drugs
referred to under a) to d) for the purposes mentioned therein.
2. The reservations under paragraph 1 shall be subject to the

following restrictions:
a) The activities mentioned in paragraph 1 may be authorized only
to the extent that they were traditional in the territories in respect
of which the reservation is made, and were there permitted on 1
January 1961.
[…]
e) Coca leaf chewing must be abolished within twenty-five years
from the coming into force of this Convention.”15
The 1961 Convention entered into force on 13 December 1964, and, in

line with the transitional period of 25 years foreseen in Article 49 (2) (e), coca
leaf chewing had to be prohibited by 12 December 1989.16 Article 49 was not
changed by the 1972 Protocol.
Article 49 of the 1961 Convention was also not affected by the provisions
of the United Nations Convention Against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances of 1988 (1988 Convention), although the relationship
between the provisions of both conventions has been the subject of some
controversy concerning the obligation to abolish coca leaf chewing under the
1961 Convention. In its Article 14 (2), the 1988 Convention established that the
measures adopted by States parties to prevent illicit cultivation and to eradicate
plants containing narcotic or psychotropic substances “shall respect fundamental
human rights and shall take due account of traditional licit uses, where there is
historic evidence of such use”.17 Despite the clear date established by the 1961
Convention for the abolition of coca leaf chewing and related production, the
provision contained in Article 14 (2) was taken by some States of the Andean
15
1961 Convention, Art. 49, supra note 6, 132-133.
16
UN, Commentary on the Single Convention on Narcotic Drugs, 1961 (1973), 470, para. 5
[UN Commentary].
17
1988 Convention, Art. 14 (2), supra note 6, 194.
292 GoJIL 5 (2013) 1, 287-324
region to justify the production of coca for traditional consumption and the
legality of traditional consumption in their domestic legal order.18 However,
Article 14 (1) of the 1988 Convention makes it clear that “[a]ny measures taken
pursuant to this Convention by Parties shall not be less stringent than the
provisions applicable to the eradication of illicit cultivation of plants containing
narcotic […] substances under the provisions of the 1961 Convention”.19
The relationship between the relevant provisions of both conventions shall be
further analyzed in section F of this article, when the relationship between the
prohibition on coca leaf chewing and the rights of indigenous peoples to their
customs and traditions is explored.
C. The Right of Indigenous Peoples to Practice Their

Customs and Traditions Under International Law
One of the key objectives of the international legal regime of the rights of
indigenous peoples is the preservation of their cultural integrity, including the
right to maintain and develop their cultural identity, customs and traditions,
and their traditional ways of life.20 Certain principles of this legal regime have
been said to be part of an emerging customary international law.21 According to
the International Law Association (ILA), this includes the right of indigenous
peoples “to recognition and preservation of their cultural identity” and the
obligation of States to “recognize and ensure respect for the laws, traditions and
customs of indigenous peoples”.22
The United Nations Declaration on the Rights of Indigenous Peoples
(UNDRIP) is the most comprehensive instrument in this regard and was adopted
by the General Assembly in 2007.23 Article 11 of the Declaration sets out the
right of indigenous peoples to practice and revitalize their cultural traditions and
customs. Under Article 12, indigenous peoples also have the right to manifest,
18
Pietschmann, supra note 5, 103.
19
1988 Convention, Art. 14 (1), supra note 6, 194.
20
S. J. Anaya, Indigenous Peoples in International Law, 2nd ed. (2004), 131 [Anaya,
Indigenous Peoples in International Law].
21
Ibid., 61; S. Wiessner, ‘Rights and Status of Indigenous Peoples: A Global Comparative
and International Legal Analysis’, 12 Harvard Human Rights Journal (1999), 57, 127.
22
C. J. Iorns Magallanes, ‘ILA Interim Report on a Commentary on the Declaration of the
the Rights of Indigenous Peoples’, Victoria University of Wellington Legal Research Paper No.
50 (2012), 51 [Iorns Magallanes, ILA Interim Report].
23
United Nations Declaration on the Rights of Indigenous Peoples, 13 September 2007, GA
Res. 61/295 annex, UN Doc A/RES/61/295, 1 [UNDRIP].
practice or develop their spiritual traditions, customs and ceremonies. Their

right to traditional medicines and health practices is enshrined in Article 24,
including the conservation of their vital medicinal plants. Article 31 affirms
the right of indigenous peoples to maintain, control, protect, and develop their
cultural heritage, traditional knowledge, and traditional cultural expressions.
These terms are further defined in specific treaties concluded under the auspices
of UNESCO. For instance, “‘cultural expressions’ are those expressions that
result from the creativity of individuals, groups and societies, and that have
cultural content”.24 ‘Cultural heritage’ includes “intangible cultural heritage”,
which in turn includes “social practices, rituals and festive events”, as well as
“knowledge and practices concerning nature and the universe”.25
While not legally binding, UNDRIP reflects the opinion of the United
Nations Member States that indigenous peoples have a set of specific rights and
that measures should be taken to protect and fulfill such rights. More importantly,
the provisions of UNDRIP related to the preservation of the cultural integrity of
indigenous peoples have not caused much controversy during the discussions on
the final draft, as opposed to issues like indigenous land rights or the territorial
and political integrity of States.26 For example, all States of the Andean region
voted in favor, except for Colombia, which abstained because it considered
those aspects of the Declaration relating to the use of the land and territories of
indigenous peoples to be in direct contradiction with its domestic legal system.27
In 2009, Colombia expressed its unilateral support for the Declaration, its spirit,
and its fundamental principles.28 Moreover, all four Member States that voted
against the Declaration have now endorsed it.29
24
Convention on the Protection and Promotion of the Diversity of Cultural Expressions, 20
October 2005, Art. 4 (3), United Nations Juridical Yearbook (2005), 361, 364-365.
25
Convention for the Safeguarding of the Intangible Cultural Heritage, 17 October 2003, Art.
2, 2368 UNTS 3, 36-37.
26
Cf. UN, General Assembly Official Records (UNGAOR) 61st Session (107th plenary
meeting), UN Doc A/61/PV.107, 13 September 2007; UNGAOR 61st Session (108th
plenary meeting), UN Doc A/61/PV.108, 13 September 2007; UNGAOR 61st Session
(109th plenary meeting), UN Doc A/61/PV.109, 17 September 2007.
27
See UNGAOR 61st Session (107th plenary meeting), supra note 26, 17-18.
28
Statement by the Colombian Vice Minister for Multilateral Affairs, Adriana Mejía Hernandez,
at the occasion of the Durban Review Conference (21 April 2009), available at http://
www.mij.gov.co/econtent/library/documents/DocNewsNo3345DocumentNo1611.PDF
(last visited 15 June 2013).
29
Australia, Canada, New Zealand, and the United States of America. See S. Wiessner, ‘The
Cultural Rights of Indigenous Peoples: Achievements and Continuing Challenges’, 22
European Journal of International Law (2011) 1, 121, 129.
294 GoJIL 5 (2013) 1, 287-324
The right of indigenous peoples to practice their cultural traditions and

customs is also enshrined in Convention No. 169 of the International Labour
Organization (ILO),30 which entered into force in 1991 and has been ratified
by the States of the Andean region. States parties to ILO Convention No. 169
are required to protect “the social, cultural, religious and spiritual values and
practices”, as well as “the integrity of the practices of indigenous peoples”.31
Moreover, the States parties have the responsibility for developing co-ordinated
and systematic action to promote the full realization of the social, economic, and
cultural rights of indigenous peoples with respect for their social and cultural
identity, their customs and traditions.32
In line with the ILO Constitution (Articles 19 and 22), States parties to
ILO Convention No. 169 are required to report regularly on its implementation.
Nevertheless, the observations that have been made by the ILO Committee
of Experts on the Application of Conventions and Recommendations so far
provide little guidance on the interpretation of the provisions relevant to the
right of indigenous peoples to practice their cultural traditions and customs.33
Other provisions relevant to the protection of the cultural integrity of
indigenous peoples can be found in international human rights treaties. These
provisions have been interpreted by the respective treaty bodies, whose views
can be summarized as follows: Indigenous peoples may constitute a minority
and may benefit from the protection of Article 27 of the International Covenant
on Civil and Political Rights (ICCPR) concerning the right of minorities to enjoy
their own culture.34 The right to take part in cultural life, enshrined in Article 15
of the International Covenant on Economic, Social and Cultural Rights (ICESCR)
also embodies the protection of the ways of life and the cultural identity of
indigenous peoples.35 The Convention on the Elimination of Racial Discrimination
also requires that States parties fight discrimination against indigenous people,
30
ILO, Convention Concerning Indigenous and Tribal Peoples in Independent Countries, 27
June 1989, 28 ILM 1382 [ILO Convention No. 169].
31
Ibid., Art. 5, 1385.
32
Ibid., Art. 2 (b), 1385.
33
The annual reports of the Committee of Experts on the Application of Conventions and
Recommendations are available at http://www.ilo.org/public/libdoc/ilo/P/09661 (last
visited 15 June 2013).
34
Human Rights Committee (HRC), General Comment No. 23, UN Doc CCPR/C/21/
Rev.1/Add.5, 26 April 1994, 1, para. 1; HRC, Kitok v. Sweden, Communication No.
197/1985, UN Doc CCPR/C/33/D/197/1985, 10 August 1988.
35
Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 21,
UN Doc E/C.12/GC/21, 21 December 2009, 8-9, para. 32.
including by recognizing and respecting their distinct culture and way of life and
by ensuring that indigenous communities can exercise their rights to practice
and revitalize their cultural customs and traditions.36 Similar considerations
apply to the right of indigenous children to enjoy their own culture, which is
explicitly affirmed in Article 30 of the Convention on the Rights of the Child.37
This overview of relevant international human rights instruments shows
that the right of indigenous peoples to practice their customs and traditions
is firmly established in international law. As mentioned in the introduction,
coca leaf chewing is part of the customs and traditions of several indigenous
peoples in some States of the Andean region, where cultivation and use of the
coca leaf has been concentrated for millennia.38 In these cultural traditions, the
use of coca leaf has important medicinal, social, and spiritual functions.39 The
importance of coca leaf chewing in the customs and traditions of the Aymara
and Quetchua peoples in Bolivia and Peru has been documented by the UN
Commission of Enquiry on the Coca Leaf.40 Many of the States of the Andean
region have established constitutional provisions aimed at protecting the rights of
indigenous peoples, including in some cases their right to practice their customs
and traditions. Nevertheless, as parties to the 1961 Convention, these States are
bound by the obligation to abolish coca leaf chewing. The question thus is: how
can these States fulfill their human rights obligations towards their indigenous
peoples while at the same time honoring their drug control obligations? A look
at domestic laws and policies will reveal different approaches in addressing this
issue.
36
Committee on the Elimination of Racial Discrimination (CERD), General Recommendation
XXIII, UN Doc HRI/GEN/1/Rev.6, 27 May 2008, 285, 285, para. 1.
37
Committee on the Rights of the Child, General Comment No. 11, UN Doc CRC/C/
GC/11, 12 February 2009, 4-5, paras 16-22.
38
Observatoire Géopolitque des Drogues (ed.), Atlas Mondial des Drogues (1996), 30.
39
See, e.g., C. J. Allen, ‘Coca and Cultural Identity in Andean Communities’, in D. Pacini
& C. Franquemont, Coca and Cocaine: Effects on People and Policy in Latin America, 35; R.
T. Martin, ‘The Role of Coca in the History, Religion, and Medicine of South American
Indians’, 24 Economic Botany (1970) 4, 422; M. Terán & A. Sandagorda, ‘Aspectos
Socioculturales del Consumo de la Coca’, in F. R. Jeri (ed.), Cocaína 1980 (1980), 282; F.
Cabieses, ‘Aspectos Etnológicos de la Coca y la Cocaína’, in Jeri, supra note 39, 179.
40
Economic and Social Council (ECOSOC), Report of the Commission of Enquiry on the
Coca Leaf (May 1950), available at http://druglawreform.info/images/stories/documents/
coca-inquiry-1950e.pdf (last visited 15 June 2013), 9-12 [ECOSOC, Report of the
Commission of Enquiry on the Coca Leaf ].
296 GoJIL 5 (2013) 1, 287-324
D. Coca Leaf Chewing and Rights of Indigenous Peoples

Under Domestic Law in the Andean Region
In Bolivia, “the rights of indigenous peoples to their cultural identity,
spirituality, practices and customs” are protected under the Constitution.41
Similarly, the constitution of Ecuador recognizes the collective right of
indigenous peoples to maintain, develop, and strengthen their traditions and
cultural heritage.42 In Peru, the State is obliged to respect the cultural identity of
indigenous communities.43 The Constitution of Venezuela not only recognizes
the right of indigenous peoples to maintain and develop their cultural identity
but also obliges the State to foster the diffusion of the manifestations of their
culture.44 In Argentina, the constitution includes a reference to the ethnic and
cultural “pre-existence” of indigenous peoples and the need to guarantee their
identity.45 In Chile, the right of indigenous peoples to maintain and develop
their cultural manifestations is protected by law.46 In Colombia, although
not explicitly foreseen in the Constitution, the rights of indigenous peoples
to cultural integrity and to traditional practices have been reaffirmed in the
jurisprudence of the Constitutional Court.47
Despite the existence of legislative and constitutional provisions aimed
at protecting the right of indigenous peoples to practice their customs and
traditions, most States appear to have addressed the issue of traditional coca
leaf chewing predominantly, if not exclusively, on the basis of their drug control
obligations. In Chile, for example, the national drug strategy 2009-2018 does
not address traditional uses of coca leaf by indigenous peoples, but refers to the
need for initiatives to reduce the consumption of drugs by such communities.48
The law penalizes the possession or cultivation of narcotic drugs,49 including
41
Constitution of Bolivia (2009), Art. 30 (II) (2).
42
Constitution of Ecuador (2008), Art. 57.
43
Constitution of Peru (1993), Art. 89.
44
Constitution of Venezuela (1999), Art. 121.
45
Constitution of Argentina (1994), Art. 75 (17).
46
Law No. 19253 (28 September 1993), Art. 7.
47
See F. Semper, ‘Los Derechos de los Pueblos Indígenas de Colombia en la Jurisprudencia
de la Corte Constitucional’, in Konrad Adenauer Stiftung (ed.), Anuario de Derecho
Constitucional Latinoamericano, Vol. II (2006), 761.
48
Chile, Ministry of the Interior, ‘Estrategia Nacional Sobre Drogas 2009-2018’ (2009),
available at http://www.cicad.oas.org/Fortalecimiento_Institucional/eng/National%20
Plans/Chile%202009-2018.pdf (last visited 15 June 2013), 21.
49
Law No. 20000 (2 February 2005), Arts 4 & 8.
coca leaf, which is also the case in Colombia50 and in Ecuador.51 The drug
legislation of Peru refers to coca leaf chewing as a grave social problem and aims
at the progressive eradication of all coca cultivation in the country.52 Its National
Drug Strategy 2012-2016 does not address coca leaf chewing, but focuses on
the strategic objective to foster alternative development in order to reduce the
illicit cultivation of the coca leaf.53 Initiatives taken by local governments to
legalize traditional uses of coca leaf by indigenous peoples have been successfully
suppressed by the national government.54 However, traditional coca leaf chewing
still continues in Peru.55
Few countries have taken a different stance. In Argentina, the law excludes
coca leaf chewing (or its use as herbal infusion) from punishable conduct,
independently of whether it is part of the traditional use by indigenous peoples
or not.56 So far, only Bolivia has put in place legislation and policies that aim
explicitly at the preservation of coca leaf chewing. It is helpful to consider the
case of Bolivia more in depth, in order to better understand the situation of
a State bound both by the obligation to abolish coca leaf chewing and by the
obligations relating to the right of indigenous peoples to practice their customs
and traditions.
E. The Case of Bolivia

The population of Bolivia is composed to a large extent of different
indigenous groups. In the last census in 2001, more than 60 per cent of the
population over 15 years of age identified themselves as indigenous, mainly as
either Aymara or Quechua.57 The economic and social situation of Bolivia is
50
Law No. 30 (31 January 1986), Art. 32.
51
Law No. 108 (17 September 1990), Arts 59 & 64.
52
Decree Law No. 22095 (21 February 1978).
53
Peru, Council of Ministers, ‘Estrategia Nacional De Lucha Contra Las Drogas 2012-2016’
(February 2012), available at http://www.cicad.oas.org/fortalecimiento_instituci onal/
planesnacionales/ENLCD-2012-2016.pdf (last visited 15 June 2013), 45.
54
International Narcotics Control Board [INCB], Report of the International Narcotics Control
Board for 2008, UN Doc E/INCB/2008/1, 19 February 2009, 75, para. 496 [INCB,
Report for 2008]; INCB, Report of the International Narcotics Control Board for 2005, UN
Doc E/INCB/2005/1, 1 March 2006, 63, para. 414.
55
INCB, Report of the International Narcotics Control Board for 2010, UN Doc E/
INCB/2010/1, 2 March 2011, 16, para. 90 [INCB, Report for 2010].
56
Law No. 23737 (10 October 1989), Art. 15.
57
National Institute for Statistics, ‘Autoidentificación con Pueblos Originarios o Indígenas
de la Población de 15 Años o Más de Edad Segun Sexo, Area Geografica y Grupo de
298 GoJIL 5 (2013) 1, 287-324
characterized by high poverty rates. In 2007, 60 per cent of the population lived
below the national poverty line and the gross national income per capita ratio has
remained below the regional average for the last decade.58 The political situation
of the country has been influenced by clashes between the interests of indigenous
groups and regional economic elites on issues such as the redistribution of
revenue, the privatization of natural resources, and the operation of foreign
companies in indigenous territories. In this situation, a political crisis erupted
in 2003, leading to violent clashes between law enforcement authorities and
protesters who rose up against the appropriation of the country’s natural gas
resources to international companies. The mass protests were spearheaded by
a coalition of movements of peasants and miners led by Evo Morales, a trade
union leader and member of the Aymara indigenous people, who was eventually
elected president in 2005 and is said to be firmly committed to the interests
of the coca farmers.59 Under the new president, a number of reforms have
been implemented, including the nationalization of oil and gas resources and
a referendum on regional autonomy. The process of constitutional reform was
revived in 2006 with the election of a constitutional assembly, but the different
interests prevailing in the country led to political turmoil and violence in 2008,
before a new constitution was approved in a referendum on 25 January 2009.60
As mentioned above, coca leaf chewing is practiced for traditional and
customary reasons by the Aymara and Quechua peoples in Bolivia. However, it is
also practiced by larger segments of the population for other purposes, including
as a relief for altitude sickness,61 which is reflected in relevant provisions of the
domestic legal regime. The new Constitution of 2009 emphasizes that coca in
its natural state is not considered to be a drug and characterizes coca as cultural
heritage, a renewable natural resource, and a factor of social cohesion.62
Edad’, available at http://www.ine.gob.bo/indice/visualizador.aspx?ah=PC2 0113.HTM

58
World Bank, ‘World Development Indicators: Bolivia’, available at http://data.worldb
ank.org/country/bolivia#cp_wdi (last visited 15 June 2013).
59
See generally the contributions in A. J. Pearce (ed.), Evo Morales and the Movimiento Al
Socialismo in Bolivia: The First Term in Context, 2005-2009 (2011).
60
A more detailed account of the recent history of Bolivia and its indigenous peoples is
contained in the annual reports of the International Working Group on Indigenous
Affairs, available at http://www.iwgia.org/publications/series/annual-reports (last visited
15 June 2013).
61
A. Lorenzo & J. Rodriguez, ‘La Hoja de Coca en Bolivia: Un Dilema de la Convención de
Viena o la Defensa del Akulliku?’, 1 Revista Andina de Estudios Políticos (2011) 7, 3, 5.
62
Constitution of Bolivia (2009), Art. 384.
Detailed rules on the control of coca and other substances are contained
in Law 1008 of 19 July 1988. It distinguishes the coca leaf in its natural state
from the processed coca leaf from which the alkaloid cocaine has been extracted
through a chemical process and prohibits the use of such processed coca
leaf. Under this law, coca leaf production as such is regarded as a legitimate
agricultural and cultural activity. Social and cultural practices in their traditional
forms, such as chewing, medicinal, and ritual uses of coca leaf are considered as
legal consumption and use. Other forms of legal use, not susceptible to cause
drug dependence or addiction, as well as legitimate industrial uses are subject
to regulatory control. The law also delimits geographical areas in which coca
cultivation is allowed, while prohibiting such cultivation in the rest of the
country.
Bolivia is bound by the international legal framework concerning the
rights of indigenous peoples, including their right to practice their customs and
traditions. Bolivia ratified ILO Convention No. 169 on 11 December 1991.63 It
also voted in favor of the adoption of UNDRIP,64 which has been conferred the
status of national law.65 Bolivia is also a party to the ICCPR, the International
Convention on the Elimination of All Forms of Racial Discrimination, the ICESCR,
and the Convention on the Rights of the Child.66 Human rights treaties ratified
by Bolivia prevail in the internal legal order, pursuant to Article 13 (IV) of its
Constitution, which also establishes that the rights and obligations set out in the
Constitution must be interpreted in conformity with such treaties.
Bolivia is also bound by the international drug control regime. Having
acceded to the 1961 Convention on 23 September 1976,67 Bolivia was required
to abolish coca leaf chewing as of that date, since it did not make a reservation
under Article 49 in order to avail itself of the transitional period for phasing
out this practice. However, Bolivia made a reservation to Article 3 (2) of the
1988 Convention, insofar as it required the country to establish as a criminal
offence the use, consumption, possession, purchase or cultivation of the coca
leaf for personal consumption. The reservation stated that the Bolivian legal
system recognized the traditional licit use of the coca leaf, which was widely used
63
See ILO, ‘Ratifications of C169 - Indigenous and Tribal Peoples Convention, 1989
(No. 169)’, available at http://www.ilo.org/dyn/normlex/en/f?p=1000:11300:0::NO:11
300:P11300_INSTRUMENT_ID:312314 (last visited 15 June 2013).
64
See UNGAOR 61st Session (108th plenary meeting), supra note 26, 19.
65
Law No. 3879 (26 June 2008).
66
See UN, ‘Multilateral Treaties Deposited with the Secretary-General’, available at http://
treaties.un.org/Pages/ParticipationStatus.aspx (last visited 15 June 2013).
67
Ibid.
300 GoJIL 5 (2013) 1, 287-324
and consumed in Bolivia, including for traditional medicinal purposes. While

Bolivia did not consider coca leaf as a narcotic drug that produced significant
psychological or physical changes, it reiterated its commitment to international
drug control:
“Bolivia will continue to take all necessary legal measures to control

the illicit cultivation of coca for the production of narcotic drugs, as
well as the illicit consumption, use and purchase of narcotic drugs
and psychotropic substances.”68
However, as pointed out by the International Narcotics Control Board

(INCB), the independent expert body set up by the 1961 Convention, this
reservation does not absolve Bolivia from fulfilling its obligations under the
convention,69 including the prohibition on coca leaf chewing.
Before 2005, the drug policy of Bolivia did not explicitly address the lack
of implementation of Article 49 of the 1961 Convention, which requires that
coca leaf chewing must be abolished. As noted by the INCB, this provision
continued “not to be applied since the production of coca leaf for chewing
continued to be considered licit under national law”,70 in line with Law 1008
of 1988. Under the presidency of Mr. Morales, Bolivia changed its drug policy,
first outlined in the National Drug Control Strategy 2007-2010.71 On the
national level, the new policy aimed at revaluing the coca leaf, while establishing
an effective control over its production and preventing its deviation for illicit
uses. On the international level, it envisaged a study to be carried out with the
support of the World Health Organization (WHO) with a view to opening a
discussion on the revision of the provisions of the 1961 Convention concerning
the coca leaf. Bolivia informed the WHO of its desire to study and validate the
use of coca leaf as a traditional medicine and its contributions to public health,72
68
1988 Convention, supra note 6, 395.
69
INCB/2011/1, 28 February 2012, 37, para. 274 [INCB, Report for 2011].
70
INCB/2001/1, January 2002, 57, para. 368.
71
Bolivia, National Council Against Illicit Drug Trafficking ‘Estrategia de Lucha Contra el
Narcotráfico y Revalorización de la Hoja de Coca 2007-2010’ (2007), available at http://
www.rree.gob.bo/webmre/publicaciones//d134. pdf (last visited 15 June 2013).
72
INCB, Report for 2011, supra note 69, 36-37, para. 273.
and the WHO Executive Board decided to defer further discussions on this
matter until the results of such a study became available.73
In practice, the national drug policy shifted its focus from the eradication
of illicit coca crops, to the promotion of the legal coca market, including by
increasing the area of licit coca crop cultivation and the implementation of
alternative development projects in cooperation with coca farmers.74 However,
the new policy has come under criticism for creating incentives to increase coca
production beyond the limits established by law and thus contributing to drug
trafficking.75 The INCB repeatedly expressed concern about the effects of the
new policy,76 stating that Bolivia was in contravention of its obligations under
the international drug control conventions. It recommended, inter alia, that the
government shall “formulate and implement education programmes aimed at
eliminating coca leaf chewing, as well as other non-medical uses of coca leaf ”.77
Bolivia brought the issue to the international fora in 2009. At this first
stage, its aim was to change the applicable rules of the international drug control
regime. On 12 March 2009, President Morales notified the UN Secretary
General (in his capacity as depositary of the 1961 Convention), that Bolivia
proposed to amend the 1961 Convention by deleting the provisions on coca leaf
chewing (i.e. Article 49, paragraphs 1 (c) and 2 (e)). The notification stressed
that coca leaf chewing was “one of the sociocultural practices and rituals of the
Andean indigenous peoples [...] closely linked to [their] history and cultural
identity” and that the prohibition on coca leaf chewing based on the provisions
in question violated the human rights of indigenous peoples, enshrined in
Article 31 UNDRIP, ILO Convention No. 169 and other instruments.78 It also
contained the argument that coca leaf chewing was not harmful to human health
73
WHO Executive Board, Summary Records, EB119/2006–EB120/2007/REC/2, 22-29
January 2007 (120th session), 53, 233.
74
Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of
Indigenous People, Promotion and Protection of all Human Rights, Civil, Political, Economic,
Social, and Cultural Rights, Including the Right to Development: Mission to Bolivia, UN Doc
A/HRC/11/11, 18 February 2009, 15, para. 58.
75
Lorenzo & Rodriguez, supra note 61, 18.
76
INCB, Report for 2010, supra note 55, 23-24, paras 141-144; Report of the International
Narcotics Control Board for 2009, UN Doc E/INCB/2009/1, 24 February 2010, 76-77,
para. 467; INCB, Report for 2008, supra note 54, 76, para. 505; INCB, Report of the
International Narcotics Control Board for 2007, UN Doc E/INCB/2007/1, 5 March 2008,
73-74, para. 476 [INCB, Report for 2007].
77
INCB, Report for 2007, supra note 76, 74, para 480.
78
See Letter Dated 12 March 2009 From the President of Bolivia Addressed to the Secretary-
General, UN Doc E/2009/78 enclosure, 15 May 2009, 4, 4.
302 GoJIL 5 (2013) 1, 287-324
and that the objective of the 1961 Convention was not to prohibit practices that
do not harm human health, thus implying that the proposed amendment was
justified and would not defeat the object and purpose of the 1961 Convention.
The notification further referred to the report of the Commission of Enquiry on
the Coca Leaf as the “basis” for the relevant provisions of the 1961 Conventions
and stated that the Report was “loaded with sociocultural prejudices”.79 The
Bolivian proposal received some media attention when Morales reiterated these
arguments and even chewed on a coca leaf at the high-level segment of the fifty-
second session of the Commission on Narcotic Drugs.80
The amendment procedure established in Article 47 (1) (b) of the 1961
Convention was initiated by ECOSOC Decision 2009/250, pursuant to which the
States parties to the convention were requested to indicate, within the following
18 months, whether they accept the proposed amendment and were asked to
submit any comments on the proposal. Until the end of February 2011, 25
States parties submitted their responses.81 Three Latin American States expressed
their support82 and two referred to the text of declarations made by Heads of
State and Government in support of the proposed amendment at summits of
the Union of South American Nations83 and of the Bolivarian Alliance for the
Peoples of Our America, signed by nine Heads of States.84 Taken together, a
total of 18 Latin American and Caribbean States supported the proposal.
By contrast, a total of 21 States from different regions rejected the proposal,
79
Ibid., 5.
80
Without mention of author, ‘Coca Leaves are not Cocaine, Evo Morales Insists’ , The
Telegraph (12 March 2009), available at http://www.telegraph.co.uk/news/worldnews/
southamerica/bolivia/4976322/Coca-leaves-are-not-cocaine-Evo-Morales-insists.html
81
Bulgaria, Canada, Colombia, Costa Rica, Denmark, Former Yugoslav Republic of
Macedonia, France, Ecuador, Egypt, Estonia, Germany, Italy, Japan, Latvia, Malaysia,
Mexico, Russian Federation, Singapore, Slovakia, Sweden, Ukraine, United Kingdom of
Great Britain and Northern Ireland, United States of America, Uruguay, and Venezuela
(Bolivarian Republic of ).
82
Note Verbale Dated 27 January 2011 From the Permanent Mission of Costa Rica, UN
Doc E/2011/68 annex, 4 February 2011, 2; Note Verbale Dated 31 January 2011 From
the Permanent Mission of Uruguay, UN Doc E/2011/65 annex, 1 February 2011, 2;
Note Verbale Dated 31 January 2011 From the Permanent Mission of Ecuador, UN Doc
E/2011/64 annex, 1 February 2011, 2.
83
Note Verbale Dated 31 January 2011 From the Permanent Mission of Ecuador, UN Doc
E/2011/81, 9 February 2011, 2.
84
Letter Dated 28 January 2011 From the Permanent Representative of the Bolivarian Republic
of Venezuela, UN Doc A/65/714-E/2011/70, 3 February 2011.
although three States withdrew their objections,85 following diplomatic efforts

by Bolivia to persuade other governments of its arguments. Most of the States
that finally rejected the proposal stated that the proposed amendment had to be
considered in light of the principles and objectives of the 1961 Convention, and
highlighted the obligation of parties to limit the trade and use of narcotic drugs,
including the coca leaf, exclusively to medical and scientific purposes, and the
need for coordinated and universal action against the abuse of narcotic drugs,86
referred to in the Preamble of the 1961 Convention. Several States cited political
considerations as reasons for their rejection of the proposed amendment,87
including the risk of creating a precedent that could be used to undermine the
universality of the international drug control regime. A number of objecting
States, however, explicitly acknowledged the importance of protecting the
cultural identity and traditional customs of indigenous peoples88 and some were
open to further dialogue in this regard.89
By January 2011, it had become obvious that changes to the international
drug control regime were unlikely to occur in the near future. At this second
stage, Bolivia adjusted its strategy and focused on changing its own legal
obligations concerning the rules requiring the abolition of coca leaf chewing.
Bolivia denounced the 1961 Convention and submitted an instrument of
accession, containing a reservation to allow
85
Letter Dated 26 January From the Ministry of Foreign Affairs of Colombia, UN Doc
E/2011/59 enclosure, 31 January 2011, 3; Note Verbale Dated 17 January 2011 From the
Permanent Mission of the Former Yugoslav Republic of Macedonia, UN Doc E/2011/12
annex, 18 January 2011, 2; Note Verbale Dated 28 January 2010 From the Permanent
Mission of Egypt, UN Doc E/2010/7 annex, 3 February 2010, 2.
86
See the following Notes by the Secretary General on the Proposal of Amendments by the
Plurinational State of Bolivia: UN Docs E/2011/47, 19 January 2011, 1; E/2011/49,
21 January 2011, 1; E/2011/51, 26 January 2011, 1; E/2011/54, 31 January 2011, 1;
E/2011/57, 31 January 2011, 1; and E/2011/61, 1 February 2011, 1.
87
Plurinational State of Bolivia: UN Docs E/2011/48, 21 January 2011, 1; E/2011/53, 28
January 2011, 1; E/2011/55, 31 January 2011, 1; E/2011/56, 31 January 2011, 1; and
E/2011/58, 31 January 2011, 1.
88
Plurinational State of Bolivia: UN Docs E/2011/53 (supra note 87); E/2011/56 (supra
note 87), E/2011/58 (supra note 87); and E/2011/60, 1 February 2011, 1.
89
Plurinational State of Bolivia: UN Docs E/2011/53 (supra note 87), E/2011/55 (supra
note 87), E/2011/56 (supra note 87) and E/2011/58 (supra note 87).
304 GoJIL 5 (2013) 1, 287-324
“traditional coca leaf chewing; the consumption and use of the coca
leaf in its natural state for cultural and medicinal purposes; its use in
infusions; and also the cultivation, trade and possession of the coca
leaf to the extent necessary for these licit purposes.”90
In the reservation, Bolivia also stressed its commitment to international

drug control, as it had already done in its reservation to the 1988 Convention:
“Bolivia will continue to take all necessary legal measures to control

the illicit cultivation of coca in order to prevent its abuse and the
illicit production of the narcotic drugs which may be extracted
from the leaf.”91
At the national level, this was affirmed in Law 147 of 29 June 2011, which
provides that Bolivia will fully comply, within the framework of its constitution,
with the provisions of the 1961 Convention until its re-accession takes effect.
While the denunciation took effect on 1 January 2012, pursuant to
Article 46 (2) of the 1961 Convention, the reservation was subject to a special
approval procedure. In accordance with Article 50 (3) of the 1961 Convention,
reservations are deemed to be permitted, unless one third of the States parties
object to it within one year. By the end of this period, only 15 of the then 183
States parties had objected to the reservation made by Bolivia.92 The objection of
61 States parties would have been necessary to disallow the reservation.
Most objecting States welcomed the commitment of Bolivia to control coca
production or recognized the efforts made to reduce its production and trade.
Some of them acknowledged the reasons cited by Bolivia for its reservation,93
although only a few explicitly referred to the human rights of indigenous
90
UN Secretary General [UNSG], Depository Notification, UN Doc C.N.829.2011.
TREATIES-28, 10 January 2012, 5.
91
Ibid.
92
Canada, Finland, France, Germany, Ireland, Israel, Italy, Japan, Mexico, Netherlands,
Portugal, Russian Federation, Sweden, United Kingdom, and United States of America.
See UNSG, Depository Notification, UN Doc C.N.94.2013.TREATIES-VI.18, 22 January
2013, 1.
93
See UNSG, Depository Notification, UN Doc C.N.719.2012.TREATIES-VI.18, 19
December 2012 [Objection by United Kingdom]; UNSG, Depository Notification, UN
Doc C.N.732.2012.TREATIES-VI.18, 21 December 2012 [Objection by Sweden];
UNSG, Depository Notification, UN Doc C.N.84.2013.TREATIES-VI.18, 15 January
2013 [Objection by Japan]; UNSG, Depository Notification, UN Doc C.N.93.2013.
TREATIES-VI.18, 16 January 2013 [Objection by Portugal].
peoples.94 Several objecting States were concerned that the reservation would
lead to a greater production and supply of coca, greater availability of cocaine,
and increased drug trafficking and related criminal activities, as well as a weaker
international response to these challenges.95 Such drug law enforcement or
political concerns were, however, not the most frequently cited reasons for
objection. Most objecting States were concerned about the legal implications of
the reservation for the international drug control regime and for the international
law of treaties more generally. The view that the reservation was at odds with
the international law of treaties was also advanced by an additional State party,
which felt it necessary to comment, while not filing a formal objection against
the reservation.96
With regard to the international drug control regime, objecting States
expressed concern that the reservation would undermine this legal framework
and the integrity of the 1961 Convention. As a result, controls over narcotic
drugs could be weakened, including if other States parties used this precedent
to establish more liberal drug control regimes within their territory.97 Similar
concerns were also expressed by the INCB, which considered that denunciation
and re-accession with reservations was contrary to the object and purpose of the
1961 Convention, since it could lead other States to adopt the same approach
and could ultimately undermine the integrity of the international drug control
94
2013 [Objection by Italy]; UNSG, Depository Notification, UN Doc C.N.19.2013.
TREATIES-VI.18, 8 January 2013 [Objection by France]; UNSG, Depository Notification,
UN Doc C.N.85.2013.TREATIES-VI.18, 15 January 2013 [Objection by Mexico].
95
See UNSG, Depository Notification, UN Doc C.N.361.2012.TREATIES-VI.18, 10
July 2012 [Objection by United States of America]; Objection by United Kingdom, supra
note 93; Objection by Sweden, supra note 93; UNSG, Depository Notification, UN Doc
C.N.751.2012.TREATIES-VI.18, 4 January 2013 [Objection by Canada]; Objection by
France, supra note 94; UNSG, Depository Notification, UN Doc C.N.88.2013.TREATIES-
VI.18, 15 January 2013 [Objection by Russian Federation]; UNSG, Depository
Notification, UN Doc C.N.89.2013.TREATIES-VI.18, 15 January 2013 [Objection by
Israel]; UNSG, Depository Notification, UN Doc C.N.101.2013.TREATIES-VI.18, 18
January 2013 [Objection by Ireland].
96
2013 [Communication by Romania].
97
See Objection by United Kingdom, supra note 93; Objection by Sweden, supra note 93;
Objection by Italy, supra note 94; Objection by France, supra note 94; Objection by Mexico,
supra note 94; Objection by Russian Federation, supra note 95; Objection by Ireland, supra
note 95; UNSG, Depository Notification, UN Doc C.N.102.2013.TREATIES-VI.18, 22
January 2013 [Objection by Netherlands].
306 GoJIL 5 (2013) 1, 287-324
system.98 In its reply to the INCB,99 the Bolivian government defended the
legality of its actions and reaffirmed its commitment to the remaining drug
control obligations under the 1961 Convention.
Concerning the law of treaties, most objecting States stated that the
procedure under Article 50 (3) of the 1961 Convention could not be used the
way Bolivia had done, albeit on different grounds. While some made reference
to basic principles like “pacta sunt servanda”,100 legal certainty101 or good faith,102
others asserted the existence of customary rules of international law prohibiting
States from “misusing” the procedure by denouncing a treaty and re-acceding
to it, in order to make it subject to a new reservation.103 Others stated that
this was contrary to the rules of the international law of treaties that prohibit
the formulation of reservations after ratification.104 Again others adopted a “lex
specialis” argument, which implies that reservations on the subject of coca leaf
chewing are exclusively possible under the special rule of Article 49 of the 1961
Convention and only until the end of the transitional period contained therein.105
Despite these arguments, it appears that a large majority of States silently
accepted the reservation of Bolivia and the procedure followed in this regard.
In fact, the UN Secretary General confirmed that the reservation was deemed
to be permitted in accordance with Article 50 (3) of the 1961 Convention and
that the accession of Bolivia, with the reservation, was effected on 11 January
2013.106 Since none of the objecting States opposed the entry into force of the
1961 Convention between themselves and Bolivia, the provisions to which the
reservation relates will not apply as between those States and Bolivia to the
extent of the reservation and the objecting States need not assume towards
98
INCB, Report for 2011, supra note 69, 37, para. 279.
99
Letter from the Minister of Foreign Affairs of Bolivia to the Secretary of the INCB (24
February 2012), available at http://www.rree.gob.bo/webmre/principal.aspx?pagina=np09.
htm&ruta=notasprensa/2012/2012_febrero/ (last visited 15 June 2013).
100
See Communication by Romania, supra note 96.
101
See Objection by France, supra note 94.
102
See Objection by Italy, supra note 94.
103
See Objection by Sweden, supra note 93; UNSG, Depository Notification, UN Doc
C.N.95.2013.TREATIES-VI.18, 16 January 2013 [Objection by Finland].
104
See Objection by Ireland, supra note 95; Objection by Netherlands, supra note 97;
Communication by Romania, supra note 96.
105
See Objection by Russian Federation, supra note 95; Objection by Portugal, supra note 93.
106
See UNSG, Depository Notification, UN Doc C.N.94.2013.TREATIES-VI.18, supra note
92.
Bolivia any legal obligation which is affected by the reservation.107 However, this
also means that Bolivia does not need to assume these obligations towards them,
thus having successfully removed its legal obligation to prohibit and abolish
coca leaf chewing under the 1961 Convention, despite the objections.
Three important considerations have emerged during the consideration of
the case of Bolivia. First, the government made a political choice to give priority
to the human rights of indigenous peoples over its international drug control
obligations. The existence of a normative conflict between the two legal regimes
only partially explains this choice, because coca leaf chewing is a broader social
phenomenon and is therefore not limited to the customary and traditional uses
by indigenous peoples in Bolivia.
The second consideration relates to the type of measures taken to address
the apparent normative conflict. Bolivia initially attempted to change relevant
rules of the international drug control regime and, when this proved unviable,
subsequently changed its own legal obligations concerning these rules. In terms
of the legal relations between the States parties to the 1961 Convention, it moved
from a measure aiming at a high degree of legal change to a measure aiming at
a lower degree of legal change. In line with its policy choice, the government
seems to have discarded from the outset the question of whether legal change
was necessary at all. It did not explore whether the rules in question could have
been interpreted in a way so as to avoid conflict between them. This possibility
will be considered in the next section.
The third consideration concerns the results of the measures taken by
Bolivia. The effects of the procedure followed to make a reservation to the
1961 Convention are not limited to international human rights law and the
international drug control regime. The procedure of denunciation and re-
accession with ratification has been followed by a number of States with regard
to different types of international treaties.108 As highlighted by the objecting
States, a number of legal issues arise, concerning the international law of treaties,
the full examination of which is beyond the scope of this article. The question
that will be examined is whether such far reaching consequences could have
been avoided by interpreting the rules in question in such a way as to resolve the
apparent normative conflict.
107
See Vienna Convention on the Law of Treaties, 22 May 1969, Art. 21 (3), 1155 UNTS 331,
337 [VLCT]; and 1961 Convention, Art. 50 (3), supra note 6, 134.
108
See Y. Tyagi, ‘The Denounciation of Human Rights Treaties’, 79 British Yearbook of
International Law (2008), 86, 173-177.
308 GoJIL 5 (2013) 1, 287-324
F. Resolving the Normative Conflict

The present section will determine the scope of the apparent normative
conflict and explores underlying reasons for the tensions between indigenous
peoples’ rights and the international drug control regime. Following the guidance
provided by the ILC concerning the fragmentation of international law,109 it will
first explore the question of whether the relevant rules are in conflict or in a
“relationship of interpretation”, i.e. whether they can be interpreted to produce
their effect in a way that is not mutually exclusive. Secondly, the preparatory
works of relevant instruments will be considered to reveal the conflicting values
and interests that are at the origin of the tension between the two bodies of law.
I. The Relationship Between the Prohibition on Coca Leaf

Chewing and the Rights of Indigenous Peoples to Their
Customs and Traditions
According to the ILC, the determination of the relationship between the
rules in question must be guided by the rules of treaty interpretation. The ILC
identified a generally recognized principle of harmonization in international
law, according to which different rules dealing with the same issue “should, to
the extent possible, be interpreted so as to give rise to a single set of compatible
obligations”.110 This approach was recently confirmed by the European Court of
Human Rights, which held that wherever apparently contradictory instruments
are simultaneously applicable they should be construed “in such a way as to
coordinate their effects and avoid any opposition between them” and that
“diverging commitments must therefore be harmonized as far as possible so
that they produce effects that are fully in accordance with existing law”.111 The
relevant rules will first be examined from the perspective of the international
drug control regime and then from the perspective of international human
rights law.
109
ILC, Report of the International Law Commission on the Work of its Fifty-Eighth Session
(2006), UN Doc A/61/10, 400-423, paras 233-251 [ILC Conclusions]; ILC, Report of
the Study Group of the International Law Commission on the Fragmentation of International
Law, UN Doc A/CN.4/L.682, 13 April 2006 [ILC Study].
110
ILC Conclusions, supra note 109, 408, para. 251 (4).
111
Nada v. Switzerland, ECHR App. No. 10593/08, 46, Judgment of 12 September 2012,
para. 170.
1. Relevant Rules of the International Drug Control Regime

In the context of the international drug control regime, it is necessary to
return to the consideration of the relationship between the relevant provisions
of the 1961 Convention and the 1988 Convention. The drug control regime
established in the 1961 Convention is complemented by the 1988 Convention.
The latter aims at the promotion of international cooperation in order to address
illicit drug trafficking more effectively, including by requiring States parties to
criminalize and establish jurisdiction over relevant offences and by enabling them
to make use of detailed provisions on extradition and mutual legal assistance in
investigations, prosecutions, and judicial proceedings.
The 1988 Convention was adopted only shortly before the end of the
transitional period for possible reservations concerning the prohibition on
coca leaf chewing provided for by the 1961 Convention. This is why Article
14 (2) of the 1988 Convention would appear to provide a possible exception
to the prohibition on coca leaf chewing by requiring States parties to respect
fundamental human rights and take due account of traditional licit uses when
taking measures to eradicate and to prevent cultivation of coca bush and other
relevant plants.
To the extent that there is an overlap or conflict between these provisions,
it could be argued that the latter one should prevail in virtue of the lex posterior
principle, especially as both conventions form part of the same regime.112
However, in reality the degree to which both provisions overlap or conflict
with each other is minimal. Article 14 (2) of the 1988 Convention does not
affect the prohibition on coca leaf chewing as such, as its scope is limited to
drug supply reduction measures and does not include other demand reduction
measures that would be necessary to enforce this prohibition. In addition, as
mentioned above, Article 14 (1) of the 1988 Convention prohibits States parties
from taking supply reduction measures that would be less stringent than the
provisions applicable under the 1961 Convention. This includes such measures
as are necessary to enforce the prohibition on coca leaf chewing under Article 49
of the 1961 Convention. Article 14 (1) of the 1988 Convention can be classified
as a conflict clause that expressly maintains the earlier treaty,113 which is evidence
of the intention of the parties to avoid conflict between the provisions of the
1988 Convention and the 1961 Convention.
112
See ILC Conclusions, supra note 109, 417, para. 251 (26).
113
See ILC Study, supra note 109, 136, para. 268 (6).
310 GoJIL 5 (2013) 1, 287-324
Taken as a whole, Article 14 of the 1988 Convention thus does not

derogate or provide any exceptions to the prohibition on coca leaf chewing.
States parties to both conventions remain bound by their obligation to abolish
coca leaf chewing, but are required to respect human rights when reducing
the supply of coca leaf in order to do so. This might include human rights
impact assessments in which due account can be taken of traditional uses. It
should go without saying that States must respect their international human
rights obligations while implementing other international obligations. It must
be asked, however, if there is a way in which States can eradicate coca bush and,
at the same time, respect the right of indigenous peoples to their customs and
traditions in a situation where such peoples cultivate coca bush precisely for
traditional coca leaf chewing. The response to this question will depend on the
scope of that right, which is further explored below.
Now that the relationship between Article 14 of the 1988 Convention
and Article 49 of the 1961 Convention has been clarified, its terms must be
interpreted in order to better understand the prohibition of coca leaf chewing
and to determine whether there is any leeway for its harmonization with the
rights of indigenous peoples. The terms of Article 49 are very specific in requiring
that States parties do not allow coca leaf chewing unless they make a reservation
at the time of signature, ratification or accession. States parties who allowed it
had to abolish coca leaf chewing within a transitional period that expired in
1989. Article 49 (2) (a) further restricted the possibility of allowing coca leaf
chewing to the extent that it was “traditional in the territories in respect of which
the reservation is made”. The fact that States parties who have not made the
reservation must prohibit coca leaf chewing is also evident from the context of
Article 49. It contains the only exception to the applicable measures of control,
which limit the production, manufacture, export, import, distribution of, trade
in, use, and possession of coca leaf.114 As mentioned in the official commentary
on the 1961 Convention, “[i]t was one of the most important achievements of the
Single Convention that it ended the exceptions permitted in earlier treaties”.115
In line with the general obligation contained in Article 4 (c), the provisions on
measures of control oblige States parties to limit coca leaf and other narcotic
drugs exclusively to medical and scientific purposes. This is also a key element
of the object and purpose of the 1961 Convention,116 which was mentioned by
most Member States in their comments on the Bolivian amendment proposal.
114
See supra notes 10-14 and accompanying text.
115
UN Commentary, supra note 16, 110, para 9.
116
Ibid.
Despite the general prohibition on coca leaf chewing, it might be tempting

to argue that, since the term “medical purposes” is not strictly defined, its meaning
should be interpreted to include coca leaf chewing when considered as a form
of traditional indigenous medicine. According to the official commentary, the
meaning of this term may depend on the circumstances and the development
of medical science, also taking into account “legitimate systems of indigenous
medicine”.117 In this regard, a possible future pronouncement of the WHO on
the use of coca leaf as a traditional medicine and its contributions to public
health could be of relevance. However, the explicit reference in Article 49 (2) (a),
labeling coca leaf chewing as “traditional”, as well as the very existence of Article
49, show that coca leaf chewing is currently outside the scope of the medical
and scientific purposes contemplated in the Convention. More importantly, no
country has ever questioned this. In fact, when the issue was discussed at the
conference for the adoption of the 1961 Convention, only the use of opium and
cannabis in indigenous medicine were mentioned.118 Even Bolivia has made
it clear that coca leaf chewing is a broader sociocultural practice and that an
amendment was necessary to allow it, despite the country’s view that the 1961
Convention does not prohibit practices that are not harmful to human health.
Having interpreted the prohibition on coca leaf chewing under the 1961
Convention in its context and in light of the object and purpose of the Convention,
it may also be necessary to take into account other relevant rules of international
law that are applicable in the relations between the parties, pursuant to Article
31 (3) (c) VCLT.119 This Article is generally considered as an expression of the
objective of “systemic integration”, which governs treaty interpretation and
reflects the fact that treaties are created by and operate within the international
legal system.120 In other words, the meaning of a treaty rule must be interpreted
against the background of other relevant rules of international law.
There is a considerable degree of uncertainty concerning the proper
application of this article, as became evident in the divergence of views expressed
117
Ibid., 111, para. 12.
118
See UN, Conference for the Adoption of a Single Convention on Narcotic Drugs, Official
Records, Vol. 1, UN Doc E/CONF.34/24 [UN, Conference for the Adoption of a Single
Convention on Narcotic Drugs].
119
See VCLT, Art. 31 (3) (c), supra note 107, 340.
120
ILC Conclusions, supra note 109, 413, para. 251 (17); ILC Study, supra note 109, 208, para.
413 (with further references). See also P. Merkouris, ‘Article 31(3) (c) of the VLCT and
the Principle of Systemic Integration’ (2010), available at https://qmro.qm ul.ac.uk/jspui/
bitstream/123456789/477/1/MERKOURISArticle%2031%283%29%28c%292010.pdf
312 GoJIL 5 (2013) 1, 287-324
both in and on the ICJ judgment on the Oil Platforms case.121 However, it appears
indisputable that Article 31 (3) (c) allows the consideration of treaty-based rules,
in addition to general principles of law and customary international law, in order
to arrive at a consistent meaning of the treaty rule under interpretation.122 While
different approaches can be followed to determine which are the relevant rules
for the purposes of Article 31 (3) (c), it has been argued that this is ultimately
an assessment of the proximity between such rules and the provision under
interpretation, including with respect to their terminology, their subject matter,
their signatory parties, and their distance in time.123
A more difficult question is whether Article 31 (3) (c) allows the interpreter
to take into account relevant rules that are in force at present or only those
applicable at the time of the conclusion of the treaty under interpretation. It
seems that this problem of inter-temporality, famously outlined by Judge Huber
in the Palmas arbitration,124 can only be resolved on a case-by-case basis, by
establishing the intention of the parties in this regard,125 starting by considering
whether the treaty itself allows for future developments of international law to
be taken into account.126
Although the prohibition on coca leaf chewing does not appear to be
an open or evolving concept, it shall be assumed for the sake of argument
that it is possible to take into account relevant rules that came into being after
the conclusion of the 1961 Convention. In this case, Article 14 of the 1988
Convention would be most relevant for the interpretation of Article 49 of the
1961 Convention, as several aspects of the proximity criterion are fulfilled. Both
provisions contain similar terminology as to “traditional” uses, while both
conventions deal with the subject matter of drug control and share a large number
of States parties. Given the combined effect of both paragraphs of Article 14 of
the 1988 Convention and its relationship with the 1961 Convention, outlined
121
Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America),
Judgment, ICJ Reports 2003, 161. For an overview of relevant views, see P. Sands & J.
Commission, ‘Treaty, Custom and Time: Interpretation/Application?’, in M. Fitzmaurice,
O. Elias & P. Merkouris (eds), The Issues of Treaty Interpretation and the Vienna Convention
on the Law of Treaties: 30 Years On (2010), 39.
122
See ILC Study, supra note 109, 237, para. 470; R. K. Gardiner, Treaty Interpretation (2008),
263.
123
See Merkouris, supra note 120, 36-78.
124
Island of Palmas Case (Netherlands, USA), 4 April 1928, 2 Reports of International Arbitral
Awards 829, 845.
125
See Merkouris, supra note 120, 120.
126
See ILC Study, supra note 109, 242, para. 478.
above, these rules, albeit relevant, do not shed a different light on the meaning
of the prohibition on coca leaf chewing. What Article 14 does clarify is that
human rights and traditional uses cannot be ignored by States when enforcing
this prohibition.
It may also be argued that the right of indigenous peoples to their customs
and traditions is itself a relevant rule of international law that must be taken into
account when interpreting Article 49. In this view, the emergence of the rights
of indigenous peoples is a significant evolution of the international legal system,
which may have an impact on the meaning to be given to the provisions under
discussion. Although less relevant in terms of subject matter, the fact that most
of the States parties to the treaties enshrining these rights are also parties to the
1961 Convention could be taken to justify this approach. However, the specific
nature of the provisions of Article 49 leaves little scope for their interpretation
or development. It is difficult to imagine how States parties could apply the
rule obliging them to abolish coca leaf chewing in a way that would not lead
to a restriction on the rights of those indigenous peoples, whose customs and
traditions involve coca leaf chewing.
2. Relevant Rules of International Human Rights Law

The relationship between the rules in question must also be addressed
from the perspective of international human rights law. Given the rigidity of
the rules on drug control, it is necessary to consider whether the rules on the
rights of indigenous peoples are more flexible in allowing for harmonization and
systemic integration.
At first sight, coca leaf chewing by indigenous peoples seems to be an
activity within the protected rights of indigenous peoples. The terms “custom”
and “tradition” mentioned in Article 2 (b) of ILO Convention No. 169 and in
Articles 11 and 12 of UNDRIP are not further defined by these instruments.
According to the dictionary definition, a custom is “a traditional and widely
accepted way of behaving or doing something that is specific to a particular
society, place, or time”, while a tradition is “a long-established custom or belief
that has been passed on from one generation to another”.127 The terms thus
express similar and partially overlapping concepts, which will include coca leaf
chewing if it is long established, widely accepted, or specific to an indigenous
people. Another relevant term is ‘cultural expressions’ of indigenous peoples,
referred to in Article 31 of UNDRIP, which was explicitly cited by Bolivia in
127
A. Stevenson (ed.), Oxford Dictionary of English, 3rd ed. (2010), 430, 1884.
314 GoJIL 5 (2013) 1, 287-324
support of its amendment proposal. As mentioned above, it may relate to social

practices, rituals, and practices concerning nature, arguably including those
involving coca leaf chewing.
However, an interpretation of the right of indigenous peoples to their
customs and traditions must also take into account relevant rules of international
law, pursuant to Article 31 (3) (c) VCLT, as outlined in the previous section.
The principle of systemic integration may be more easily applied here, since the
provisions on the right of indigenous peoples to their customs and traditions
are less specific and appear open to interpretation. As stressed by the ILC with
reference to the jurisprudence of the ICJ, States entering into treaty obligations
cannot be presumed to act inconsistently with generally recognized principles of
international law.128 Arguably, one of the most important of these principles is
the obligation of States to honor their commitments under the treaties they are
parties to (pacta sunt servanda), codified in Article 26 VCLT. States that ratify
or accede to ILO Convention No. 169 thus cannot be deemed to deviate from
their obligations under the 1961 Convention, including the prohibition on coca
leaf chewing. If this presumption cannot be rebutted, the obligation to respect
the rights of indigenous peoples to their customs and traditions under ILO
Convention No. 169 must be interpreted without prejudice to the prohibition on
coca leaf chewing under the 1961 Convention. Arguably, this applies, a forteriori,
to any customary rules in this regard, as well as the commitments accepted
by States under the UNDRIP. As a matter of law, this would mean that the
provisions protecting the customs and traditions of indigenous peoples do not
extend to coca leaf chewing, even if it is part of their customs and traditions as
a matter of fact. This presumption needs to be considered in the context of the
relevant provisions and in light of the object and purpose of the instruments
protecting indigenous rights.
A central feature of the instruments enshrining the rights of indigenous
peoples is the primary role accorded to the interests, views, and aspirations of
indigenous peoples. ILO Convention No. 169 aims at empowering indigenous
peoples and at ensuring that they can maintain and develop their cultural
identity, customs, traditions, and institutions, in accordance with their own
aspirations.129 The importance of respect for and the development of the
institutions, cultures, and traditions of indigenous peoples in accordance with
their aspirations and needs is reaffirmed in the preamble of UNDRIP. Key
128
ILC Conclusions, supra note 109, 414, para. 251 (19) (b).
129
B. Feiring, Indigenous & Tribal People’s Rights in Practice: A Guide to ILO Convention No.
169 (2009), 36.
objectives are indigenous peoples’ consent to and involvement in the policies

and measures that affect them. This is evident from several provisions of ILO
Convention No. 169. Article 1 (c) establishes self-identification as indigenous as
a fundamental criterion for the application of the provisions of the convention.
The cooperation and participation of indigenous peoples is required in several
articles throughout the Convention.130 Article 6 establishes a general principle
of consultation, reaffirmed in Article 19 UNDRIP, pursuant to which the
peoples affected by legislative or administrative measures must be consulted
through their own representative institutions. The requirement of consultations
and cooperation with the peoples concerned is also an integral part of several
provisions of UNDRIP.131
Based on these considerations, it is submitted here that any presumptive
restriction of the concept of customs and traditions would be at odds with the
object and purpose of ILO Convention No. 169 and other relevant instruments.
If the views of indigenous peoples and the principle of consultation are to be
taken seriously, States will need to defer to the views of the indigenous peoples
concerning their customs and traditions. Therefore, indigenous peoples who
identify coca leaf chewing as part of their customs and traditions should, in
principle, be entitled to the protection of their rights in this regard. This does not
mean that States cannot restrict the rights of indigenous peoples. In fact, these
rights are not absolute and may be subject to limitations. What it means is that
restrictions of these rights cannot be presumed but must follow the appropriate
procedures, in consultation with the indigenous peoples concerned and taking
their interests and views into account.
ILO Convention No. 169 does not prevent States parties from applying
national laws and regulations on drug control to indigenous peoples. However,
its Article 8 (1) requires governments to accord due regard to the customs or
customary laws of these peoples when doing so. Article 8 (2) states that the right
of indigenous peoples to retain their own customs is contingent on whether
such customs are compatible with fundamental rights defined by the national
legal system and with internationally recognized human rights. It also requires
that procedures shall be established to resolve conflicts, which may arise in this
context. Both provisions must be read together with the general principle of
consultation set out in Article 6 of ILO Convention No. 169, which requires that
consultations are to be carried out through appropriate procedures, in particular
130
Convention No. 169, Arts 2 (1), 5 (c), 7, 15, 20 (1), 22, 23 (1), 25 (2), 27 (1), 29 & 33 (2),
supra note 30, 1385-1391.
131
Ibid., Arts 15, 17, 30, 32, 36 & 38, 1387-1388, 1391-1392.
316 GoJIL 5 (2013) 1, 287-324
through indigenous peoples’ representative institutions, with the objective of

achieving agreement or consent to the proposed measures. Comments made by
States during the preparatory works of ILO Convention No. 169 confirm that
the purpose of the restriction foreseen in Article 8 (2) is to address situations
in which customary practices of indigenous peoples result in discrimination
against women, slavery or other human rights violations.132
The international human rights treaties are the yardsticks against which
restrictions to the customary practices of indigenous peoples will be measured.
Moreover, some of these treaties contain specific obligations that may affect the
right of indigenous peoples to practice their cultural traditions and customs. For
instance, under Article 2 (f ) of the Convention on the Elimination of All Forms
of Discrimination Against Women, States parties agreed “to take all appropriate
measures […] to modify or abolish existing […] customs and practices which
constitute discrimination against women”.133 Under Article 33 of the Convention
on the Rights of the Child, States parties are obliged to “take all appropriate
measures […] to protect children from the illicit use of narcotic drugs and
psychotropic substances as defined in the relevant international treaties”.134 The
result of this provision is an obligation to protect indigenous children from coca
leaf chewing, taking into account the relevant provisions of the 1961 Convention.
Restrictions to the rights of indigenous peoples are also envisaged in the
UNDRIP. Under Article 34, indigenous peoples have the right to promote,
develop, and maintain their distinctive customs, spirituality, traditions, etc. “in
accordance with international human rights standards”.135 Moreover, Article 46
also allows limitations that are imposed for other purposes, as long as they are
determined by law and in accordance with human rights obligations. It also sets
out a balancing test that incorporates elements developed in the jurisprudence
of the Human Rights Committee. In accordance with that provision, any
limitation shall be
“non-discriminatory and strictly necessary solely for the purpose of

securing due recognition and respect for the rights and freedoms of
132
ILO, Partial Revison of the Indigenous and Tribal Populations Convention, 1957 (No. 107),
International Labour Conference (75th Session), Report VI (1) (1987), 38 [ILO, Partial
Revison of the Indigenous and Tribal Populations Convention, Report VI (1)].
133
Convention on the Elimination of All Forms of Discrimination Against Women, 18 December,
Art. 2 (f ), 18 December 1979, 1249 UNTS 13, 16.
134
Convention on the Rights of the Child, 20 November 1989, Art. 33, 1577 UNTS 3, 55.
135
UNDRIP, Art. 34, supra note 23, 9.
others and for meeting the just and most compelling requirements
of a democratic society”.136
The rights guaranteed to indigenous peoples in the context of Article

27 ICCPR are also not without limits. According to the jurisprudence of the
Human Rights Committee, a balancing test must be applied to assess whether
there is a reasonable and objective justification for the interference by a State
party and whether the interference is necessary, reasonable, and proportionate.137
In particular, this jurisprudence considers whether the interference with the way
of life of the people concerned is so substantial that it denied or failed to protect
their right to enjoy their own culture. In this regard, it is of special importance
whether the people affected have been consulted during the proceedings.138
The mentioned provisions make it clear that States may lawfully restrict
the right of indigenous peoples to their customs and traditions. This can be
done in order to safeguard human rights standards, but also for other purposes,
such as drug control. In either case, a balancing test will have to be applied to
assess whether the interference by a State with the right of indigenous peoples is
justifiable. So far, the situation is not dissimilar from restrictions of other human
rights, such as limitations to the freedom of peaceful assembly in the interests of
national security or public safety.139 The distinctive feature of restrictions to the
rights of indigenous peoples is the importance of consulting them in this regard,
including by using their institutions and taking into account their customary
laws. According to some commentators, any assessment of indigenous peoples’
cultural practices should allow the peoples concerned a certain margin of
appreciation and an opportunity to use their own decision-making processes
in interpreting and applying human rights standards.140 This would mean that
States intending to enforce their international obligation to abolish coca leaf
136
Ibid., Art. 46 (2), 11.
137
Lovelace v. Canada, Communication No. R.6/24, UN Doc A/36/40, 166, 30 July
1981, Kitok v. Sweden, supra note 34; Länsman et al. v. Finland, Communication No.
511/1992, UN Doc CCPR/C/52/D/511/1992, 26 October 1994; Länsman III v. Finland,
Communication No. 1023/2001, UN Doc A/60/40 (Vol. II), 17 March 2008, 90.
138
See Länsman et al. v. Finland, supra note 137, 11, para. 9.6.
139
See International Covenant on Civil and Political Rights, 16 December 1966, Art. 21, 999
UNTS 171, 178.
140
See A. Xanthaki, Indigenous Rights and United Nations Standards: Self-Determination,
Culture and Land (2007), 109; and Iorns Magallanes, ‘ILA Interim Report’, supra note
22, 18; both with reference to S. J. Anaya, ‘International Human Rights and Indigenous
Peoples: The Move Toward the Multicultural State’, 21 Arizona Journal of International and
Comparative Law (2004) 1, 13, 26.
318 GoJIL 5 (2013) 1, 287-324
chewing will at least need to consult the indigenous peoples affected as early as
possible, making use of their institutions and customary laws in order to achieve
consent on the envisaged measures and to possibly implement these measures.
Having considered the problem both from a drug control and a human
rights perspective, it would thus seem inevitable to conclude that the rules in
question are indeed in a relationship of interpretation. States who are obliged
to implement the prohibition on coca leaf chewing can restrict the right of
indigenous peoples to their customs and traditions, but should follow the
appropriate procedures to do so in consultation with the peoples concerned,
in line with the object and purpose of the relevant instruments. Although this
outcome appears legally sound, it is not very favorable to the rights of indigenous
peoples, because the balance to be drawn will be tilted in favor of the abolition
of coca leaf chewing. The question remains whether a consultation procedure
will allow States to give enough weight to culture as an essential element of the
identity of the indigenous peoples concerned.141
II. Underlying Reasons for Tension Between Indigenous Peoples’

Rights and the International Drug Control Regime
Even though the conclusion reached is that the rules containing the
prohibition on coca leaf chewing and those enshrining the right of indigenous
peoples to their customs and traditions are in a relationship of interpretation,
a degree of tension between these rules clearly remains. In order to better
understand the values and interests at the heart of this underlying tension, it
is helpful to consider the preparatory work of the relevant provisions under
the 1961 Convention and ILO Convention No. 169. Both instruments are based
on certain sets of value judgments concerning indigenous peoples. The values
and attitudes of the international community towards indigenous peoples have
changed considerably during the past decades.
The need to limit the production of coca leaf had been discussed in various
fora under the auspices of the League of Nations. It was also one of the first issues
to be considered by the competent bodies of the United Nations, which decided
to establish a Commission of Enquiry on the Coca Leaf.142 From September to
December 1949, the Commission conducted a fact finding mission in Peru and
Bolivia to investigate the effects of chewing the coca leaf and the possibilities
141
Iorns Magallanes, ‘ILA Interim Report’, supra note 22, 19.
142
See UN Division of Narcotic Drugs, ‘Commission of Enquiry on the Coca Leaf ’, 1
Bulletin on Narcotics (1949) 1, 20.
of limiting its production and controlling its distribution.143 With regard to

coca leaf chewers in Peru and Bolivia, the Commission found that almost all of
them were “Indian”, i.e. members of the indigenous peoples of the Quechua and
Aymara.144 It highlighted the sacred character of the coca leaf and its important
role in the customs and rituals of these peoples, especially those relating to
holidays, deaths, agriculture, illnesses and magical practices.145 However, the
Commission dismissed the supernatural beliefs associated with these customs
and practices as “superstitions”.146 It considered the factors encouraging coca
leaf chewing as a result of the poor living conditions and the lack of education
of the indigenous communities concerned. Although deeply rooted in certain
regions and groups, the Commission expressed the view that these factors could
be eradicated by improving the living conditions and providing education,147
and concluded that coca leaf chewing produced harmful effects, including
malnutrition, undesirable changes of an intellectual and moral character, and
reduced economic activity.148 It recommended a gradual suppression of coca
leaf chewing, including by improving the living conditions of the populations
concerned and eradicating the production, distribution, and chewing of coca
leaf.149
The views expressed by the Commission of Enquiry formed the basic
understanding among States with regard to the question of the coca leaf,
which was addressed at the intergovernmental level in the period leading to the
adoption of the 1961 Convention. The matter was considered within ECOSOC
and its Commission on Narcotic Drugs, as well as by the Expert Committee
on Drugs Liable to Produce Addiction of the WHO. The health experts agreed
that coca leaf chewing was harmful to the individual and to society and should
be considered as a form of addiction.150 The policy-making bodies encouraged
countries to progressively abolish its eradication, including by implementing
143
See ECOSOC, ‘Report of the Commission of Enquiry on the Coca Leaf ’, supra note 40,
102.
144
Ibid., 9.
145
Ibid., 53-54.
146
Ibid., 10.
147
Ibid., 54.
148
Ibid., 93.
149
Ibid., 94-98.
150
WHO, ‘Third Report of the Expert Committee on Drugs Liable to Produce Addiction’,
Technical Report Series No. 57 (1952), 10.
320 GoJIL 5 (2013) 1, 287-324
educational programmes to highlight the harmful effects.151 As a response, States

like Argentina, Bolivia, Colombia, and Peru adopted a policy of progressive
abolition of coca leaf chewing.152
During the negotiations at the United Nations Conference for the
Adoption of a Single Convention on Narcotic Drugs in 1961, there was a
consensus among delegations that coca leaf chewing was harmful and that its
gradual abolishment was necessary. While different opinions were expressed as
to the length of the transitional period, no delegation questioned the purpose of
the relevant provisions in the draft text. The representatives of Bolivia and Peru
argued that more time was required to abolish traditional coca leaf chewing
by their indigenous peoples, while emphasizing their ongoing efforts in this
regard.153
The policies of progressive abolition were further developed at the regional
level. An Inter-American Consultative Group on Narcotics Control met at Rio
de Janeiro from 27 November to 7 December 1961, followed by two meetings of
the Inter-American Consultative Group on Coca Leaf Problems, which agreed
that coca leaf chewing was harmful and should be abolished. It considered that
the incidence of this habit could be radically reduced by improving the “difficult
economic, social and harsh climatic conditions under which the highland
Indians lived”.154
These developments show how strongly the provisions requiring the
abolition of coca leaf chewing reflect the value judgments and attitudes towards
indigenous peoples that were prevalent within the international community in
the 1950s and early 1960s. The economic, social, and cultural conditions of
indigenous peoples were considered under-developed and destined to disappear
with “modernization”. It was believed that governments had a “duty to integrate
151
See Commission on Narcotic Drugs Res. 1 (VII), May 1952; ECOSOC Res. 1952/436(XIV)
E, 28 May 1952; ECOSOC Res. 1954/548, UN Doc E/RES/1954/548(XVIII)E, 12 July
1954.
152
See ECOSOC Res. 1954/548(XVIII)E, supra note 151.
153
UN, Conference for the Adoption of a Single Convention on Narcotic Drugs, supra note 118,
57.
154
Report of the Consultative Group on Coca Leaf Problems, Part III, para. 27, reprinted in
C. Avalos Jibaja, ‘Consultative Group on Coca Leaf Problems’, 16 Bulletin on Narcotics
(1964) 3, 25, 31.
the highland Indians in the economic and social life of their nations”155 and that
there was the need for “a fight against superstition and mistaken beliefs”.156
The same attitude also informed the negotiations and the provisions of
the ILO Convention Concerning Indigenous and Tribal Populations of 1957 (ILO
Convention No. 107).157 ILO Convention No. 107 reflected the same paternalistic
and integrationist approach, based on the assumption that indigenous groups
were culturally inferior and that they needed to be integrated into society
in order to help them reach a higher stage of social, economic, and cultural
development.158 This was evident in the provisions of ILO Convention No.
107, which established that the progressive integration of indigenous peoples
was the main aim of government action,159 and that “the social, economic and
cultural conditions of the populations concerned prevent them from enjoying
the benefits of the general laws of the country to which they belong”.160
A more detailed debate emerged in the 1970s, when indigenous peoples
were increasingly organized and visible at the international level, in order to
challenge this paternalistic approach.161 At the ILO, this led to a review of ILO
Convention No. 107 during 1988 and 1989 and, ultimately, the adoption and
entry into force of ILO Convention No. 169. During the preparatory works
of ILO Convention No. 169, governments agreed that the views concerning
indigenous peoples had changed considerably and that the integrationist
approach and the assumption of cultural inferiority needed to be removed from
the Convention.162 Instead of aiming at the integration of indigenous culture,
the new rules enshrined in ILO Convention No. 169 and UNDRIP aim at
achieving the recognition of, and respect for, the ethnic and cultural diversity of
indigenous peoples. This new attitude is also reflected in other instruments. For
155
Ibid., 32.
156
M. Granier-Doyeux, ‘Some Sociolgical Aspects of the Problem of Cocaism’, 14 Bulletin on
Narcotics (1962) 4, 1, 16.
157
ILO, Partial Revison of the Indigenous and Tribal Populations Convention, Report VI (1)
(1987), supra note 132, 18-19 & 27-29.
158
See Xanthaki, supra note 140, 52-55.
159
ILO, Convention Concerning the Protection and Integration of Indigenous and Oher Tribal
Peoples and Semi-Tribal Populations in Independent Countries, 26 June 1957, Arts 1 (2), 2,
4, 5, 7 (2), 17 (3), 22 (1) & 24, 328 UNTS 247, 251, 252, 254, 260, 262.
160
Ibid., Art. 3 (1), 252.
161
See Anaya, Indigenous Peoples in International Law, supra note 20, 56.
162
ILO, Partial Revision of the Indigenous and Tribal Populations Convention, 1957 (No. 107),
International Labour Conference (75th Session), Report VI (2) (1988), 3-9. See also ILO,
Provisional Record No. 32, International Labour Conference (75th Session) (1988); ILO,
Provisional Record No. 25, International Labour Conference (76th Session) (1989).
322 GoJIL 5 (2013) 1, 287-324
instance, Article 1 of the UNESCO Universal Declaration on Cultural Diversity

states that “cultural diversity is as necessary for humankind as biodiversity is for
nature”.163
The international drug control regime has not undergone the same
fundamental changes. An attempt to open its provisions to the respect of
traditional uses of coca leaf by indigenous peoples was made during the
preparatory works of the 1988 Convention. Bolivia and other States proposed
the inclusion of a reference to traditional licit uses into the draft article on
measures against the illicit cultivation of coca bush and other plants. Many
States initially opposed this proposal on the grounds that traditions were often
subject to change.164 Their main concern was to avoid introducing any sweeping
exceptions or loopholes that might hinder the effective eradication of drug
crops or increase their illicit cultivation.165 The final compromise was reached
by introducing the aforementioned sentence in Article 14 (1) to the effect that
any measures taken under the Convention shall not be less stringent than the
provisions applicable under the other international drug control treaties.166 As a
result, the reference to traditional licit uses in the 1988 Convention did not affect
the prohibition on coca leaf chewing under the 1961 Convention. As outlined in
section E, there was no support from States outside Latin America for Bolivia’s
recent proposal to amend the 1961 Convention to remove this prohibition.
These developments illustrate the conflicting values and interests that exist
within the international community. On the one hand, the value judgments and
attitudes of States towards indigenous peoples have moved towards respect for
the culture and identity of indigenous peoples. This has led to the development
and changes of relevant rules of international human rights law. On the other
hand, most States have been reluctant to permit changes to the rules of the
international drug control regime. Maintaining the integrity and effectiveness of
this body of law seems to be their primary concern, even if they share the attitude
of respect for the culture and identity of indigenous peoples. This ambivalence
may be considered as the main source of the tension between the prohibition
163
UNESCO, Universal Declaration on Cultural Diversity, 2 November 2001, Art. 1, 41 ILM
57, 58.
164
UN Conference for the Adoption of a Convention Against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances, Official Records, Vol. 1, UN Doc E/CONF.82/16, 26.
165
UN Conference for the Adoption of a Convention Against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances, Official Records, Vol. 2, UN Doc E/CONF.82/16/Add.1, 297-
298.
166
Ibid., 300-305; UN, Commentary on the United Nations Convention Against Illicit Traffic in
Narcotic Drugs and Psychotropic Substances (1988), 300.
on coca leaf chewing and the right of indigenous peoples to their customs and
traditions.
G. Conclusion
The present article has examined whether a conflict exists between the
rules of international law prohibiting coca leaf chewing and those enshrining
the right of indigenous peoples to their customs and traditions. In practice,
governments of countries where coca leaf chewing is practiced by indigenous
peoples do not seem to have considered the issue as a normative conflict. So
far, only Bolivia has asserted that a normative conflict exists and has called
international attention to the issue by attempting to change relevant rules and
its obligations under the international drug control regime. Its choice was a
political one and must be seen in light of its broader policy of legalizing and
promoting traditional uses of coca leaf, which is not limited to safeguarding the
rights of indigenous peoples.
The case of Bolivia has shown that resolving the normative conflict in favor
of the rights of indigenous peoples requires changes to existing international
law. Such changes are not easily achievable and may have negative impacts
on treaty relations. Bolivia only succeeded in removing its own obligation
to abolish coca leaf chewing, instead of changing relevant rules of the 1961
Convention for all States parties. In denouncing the 1961 Convention and re-
acceding to it with a reservation, Bolivia not only affected the integrity of the
convention, but also added to existing precedents regarding this procedure with
potentially significant consequences. It might appear attractive for other States
parties pursuing a new drug policy to use the same procedure in order to avoid
international responsibility for decisions to legalize cannabis or other narcotic
drugs within their territory. In a case like this, unless one third of the States
parties to the 1961 Convention were to object, all States parties would have to
accept the consequence that the provisions excluded by the reservation would
not apply as between them and the reserving State. The appeal of using this is
not limited to the international drug control regime and may also be used to
modify obligations under international treaties on other subject matters.
At the conceptual level, a legal analysis has led to the conclusion that
a normative conflict can be resolved or avoided, without changing existing
international law, by applying the rules of treaty interpretation and the principle
of harmonization. However, the rules in question can be harmonized only by
restricting the right of indigenous peoples to their customs and traditions. In
this regard, it would be of crucial importance that States consult the indigenous
324 GoJIL 5 (2013) 1, 287-324
peoples affected and enable them to use their institutions and decision-making
procedures, in order to abolish coca leaf chewing in the least intrusive and most
acceptable way possible. Having said this, it is conceivable that there may be
borderline cases in which an indigenous people considers coca leaf chewing
to be so central to its culture and identity that even the use of appropriate
consultations and institutions in abolishing coca leaf chewing would defeat the
purpose of preserving its culture and identity.
An examination of the drafting history of relevant provisions has revealed
the conflicting values and interests of the international community as the origin
of the tension between the rules in question. Whether or not coca leaf chewing
is still considered as harmful for human health, its prohibition may be seen
as a codification of an outdated attitude towards indigenous peoples that is
no longer supported by any State. On the one hand, this begs the question of
whether the rule to abolish coca leaf chewing has lost its legitimacy and whether
the principle of harmonization should be applied in this case. Restricting the
rights of indigenous peoples in order to enable the application of such a rule
may seem unfair, especially in borderline cases where the very purpose of these
rights is at stake. On the other hand, the prohibition on coca leaf chewing
remains a binding obligation of States parties to the 1961 Convention, despite
the attempt of Bolivia to change relevant rules. The main argument in favor
of the prohibition is that allowing coca leaf chewing would lead to a greater
production and supply of coca, greater availability of cocaine, and increased
drug trafficking and related criminal activities. Accordingly, a restriction of the
rights of indigenous peoples would be warranted in order to safeguard the health
and security of people worldwide.
To conclude, the normative conflict can be addressed either within
the existing international legal framework or by changing international legal
obligations. Both options have adverse consequences. A coherent solution within
existing international law would not be favorable to the rights of indigenous
peoples. On the other hand, attempts to amend the international drug control
regime are unlikely to succeed in the current political climate. While the
procedure of denunciation and re-accession of a treaty with reservation has
proven successful for the purposes of Bolivia, a more widespread use of this
procedure risks affecting the integrity of multilateral treaties and the stability of
treaty relations.

Rights of Indigenous Peoples and The Int

Uploaded by

Copyright:

Available Formats

Rights of Indigenous Peoples and The Int

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Rights of Indigenous Peoples and The Int

Uploaded by

Copyright:

Available Formats

Goettingen Journal of International Law 5 (2013) 1, 287-324 287

Rights of Indigenous Peoples and the

B. Coca Leaf Chewing Under the International Drug

“1. A Party may at the time of signature, ratification or accession

2. The reservations under paragraph 1 shall be subject to the

The 1961 Convention entered into force on 13 December 1964, and, in

C. The Right of Indigenous Peoples to Practice Their

practice or develop their spiritual traditions, customs and ceremonies. Their

The right of indigenous peoples to practice their cultural traditions and

D. Coca Leaf Chewing and Rights of Indigenous Peoples

E. The Case of Bolivia

Edad’, available at http://www.ine.gob.bo/indice/visualizador.aspx?ah=PC2 0113.HTM

and consumed in Bolivia, including for traditional medicinal purposes. While

“Bolivia will continue to take all necessary legal measures to control

However, as pointed out by the International Narcotics Control Board

although three States withdrew their objections,85 following diplomatic efforts

In the reservation, Bolivia also stressed its commitment to international

“Bolivia will continue to take all necessary legal measures to control

F. Resolving the Normative Conflict

I. The Relationship Between the Prohibition on Coca Leaf

1. Relevant Rules of the International Drug Control Regime

Taken as a whole, Article 14 of the 1988 Convention thus does not

Despite the general prohibition on coca leaf chewing, it might be tempting

2. Relevant Rules of International Human Rights Law

support of its amendment proposal. As mentioned above, it may relate to social

objectives are indigenous peoples’ consent to and involvement in the policies

through indigenous peoples’ representative institutions, with the objective of

“non-discriminatory and strictly necessary solely for the purpose of

The rights guaranteed to indigenous peoples in the context of Article

II. Underlying Reasons for Tension Between Indigenous Peoples’

of limiting its production and controlling its distribution.143 With regard to

educational programmes to highlight the harmful effects.151 As a response, States

instance, Article 1 of the UNESCO Universal Declaration on Cultural Diversity

You might also like

Pfad - The Proxy pFad of © 2024 Garber Painting. All rights reserved.