Bolivia, the coca leaf and the right to reserve

TNI, 02 January 2012, by Pien Metaal

Just before ending 2011, Bolivia presented the formal notification to the United Nations secretariat in New York, announcing their re-adherence to the 1961 UN Single Convention, including a reservation on the use of coca leaf in its natural form, such as coca chewing and infusions. This step was expected to happen, after Bolivia withdrew in June 2011 from the Treaty in an attempt to reconcile its international obligations with its 2008 Constitution. From the day the re-adherence was received in New York, according to the procedure and established practice, it will take 30 days for Bolivia to again become a full member of the 1961 Convention. In other words, on January 28, 2012, the re-adherence will be a fact.

News articles mistakenly suggest that Bolivia will only be part again to the Convention after the acceptance of the reservation by one-third of all member states to this treaty. Some even call into question the ability of the country to fulfill its international obligations now that they no longer are bound by the 1961 treaty. However, the entrance of Bolivia as part of the 1961 Single Convention has to be accepted by the Secretary General without passing a judgment upon the validity of the reservation. Only if one-third of the parties of the 1961 Convention object to Bolivia’s reservation (61 out of 184 countries) it would be considered invalid. In this case Bolivia would withdraw from the Convention again.

The practice in the depositing of international legal instruments has changed in the 1990 and 2000, towards one in which "the Secretary-General of the United Nations, in his capacity as depositary of multilateral treaties, for example, agrees that any instrument expressing consent to be bound by a treaty which is accompanied by a reservation may be deposited and, refusing to adopt a position on the issue of the permissibility or effects of the reservation, 'indicates the date on which, in accordance with the treaty provisions, the instrument would normally produce its effect, leaving it to each party to draw the legal consequences of the reservations that it deems fit'." (Par. 246 in the Fourteenth report on reservations to treaties, A/CN.4/614/Add.2)

This reading of the practice has not only been ignored by the press, but what is worse, also by the spokesperson of the UN Office on Drugs and Crime (UNODC), César Guedes, who asserted Bolivia would be no part of the Convention for twelve months, and by re-adhering with a reservation it would loose its credibility, affecting its international image in a negative way. His appreciation of the facts was not only demonstratively wrong, but it added another taste to the uncooperative stance in the relation between Bolivia and the UN drug control bureaucracy in resolving this genuine contradiction.

Earlier, and as expected, the International Narcotics Control Board (INCB) also spoke out Bolivia’s withdrawal and re-adherence, declaring that it would undermine the integrity of the UN drugs conventions. These signals are not helpful, and will only cause more confusion, as can be seen by the way the press covers the issue. One wonders what justifies this attitude and the ignorance of UN officials about their own procedures.

The coca leaf has been mistakenly included into the UN drug control conventions, and Bolivia will hopefully continue to expose this to the international community. The international community, in turn, should ask itself seriously what it is they are trying to protect; and at what cost.

See also: Bolivia’s legal reconciliation with the UN Single Convention on Narcotic Drugs, IDPC Advocacy Note, July 2011

Keep up-to-date with drug policy developments by subscribing to the IDPC Monthly Alert.