More blood has been shed as a result of the “war on drugs” in Colombia and Mexico than anywhere else in Latin America, giving the two countries pretty solid credentials to critique the prevailing international drug control paradigm. And both of them did just that at the high-level segment of the 2014 annual meeting of the United Nations Commission on Narcotic Drugs (CND), which brings hundreds of policy officials from around the world to Vienna every March.
“Colombia has adopted all of the recommendations received from the international community…even at the risk of exacting a painful quota of blood in the fight against this world scourge,” declared the country’s Minister of Justice and Human Rights, Alfonso Gómez Méndez. “[W]e have learned that… winning battles does not achieve victory. Despite using all of these measures, we have not, as is the case in the rest of the world, achieved the desired results.” The Mexican representative asserted that, “strategies to reduce demand and supply…should not cause more harmful effects than the damage…generated by the demand and supply of drugs.” Such statements would have been unthinkable even two or three years ago. But now, such concerns are routinely expressed by sitting presidents and officials from key Latin American countries.
This puts Latin America at the vanguard of international efforts to promote drug policy reform. The calls for frank discussion have had major repercussions within the Organization of American States (OAS), which issued a ground-breaking report on drug policy in May 2013, and the United Nations, which at the request of the governments of Colombia, Mexico, and Guatemala will host a UN General Assembly Special Session (UNGASS) on drugs in 2016. This will be the first opportunity since 1998 for an international governmental forum of the world’s leaders to discuss drug policies.
Moreover, two Latin American countries have directly challenged the prevailing international conventions. Bolivia is the first country to denounce and return to the 1961 Single Convention on Narcotic Drugs with a reservation on the coca leaf, over the objections of powerful actors including the United States and Russia. The 1961 Convention—the cornerstone of the international drug control regime—erroneously lists the coca plant as a dangerous narcotic and called for the elimination of all coca use within 25 years, a period that has long come and gone. Bolivia’s new constitution recognizes the right to use coca for traditional and legal purposes. In order to reconcile its new constitution with its international obligations, in June 2011 the Bolivian government denounced the 1961 Convention (as amended by the 1972 Protocol) and then re-acceded with a reservation allowing for the traditional use of coca within its territory.
The other country that has taken center stage in the drug policy debate is Uruguay, which is forging a new path as the first country in the world to adopt a legal, regulated cannabis market.
Reform-oriented countries in other parts of the world are looking to Latin America to take the lead in pushing for debate and, above all, the beginning of meaningful reform at the 2016 UNGASS. Whether or not the region will be able to play that role, however, is far from clear given the formidable opposition by some countries and indifference on the part of others.
Fortunately, reform-oriented countries are getting a significant boost from civil society. A drug policy reform movement has taken root across the region, including non-governmental organizations (NGOs), treatment providers, student groups (primarily organized around cannabis regulation) and drug user groups. Many of the NGOs work together within the International Drug Policy Consortium (IDPC), a coalition of more than 100 organizations and networks worldwide advocating for more effective and humane drug policies. This May, massive marches took place in numerous Latin American countries in support of creating legal, regulated cannabis markets. Regional dynamics around drug policy issues have undergone a profound shift.
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Since President Nixon first declared the War on Drugs over 40 years ago, the U.S. government has used its political and economic muscle to dictate policies throughout the region. Now the tables have turned as Latin American countries have emerged as a driving force. Numerous factors have contributed to the waning influence of Washington on this and other policies. The surge in left-leaning governments in countries such as Venezuela, Ecuador, and Bolivia has challenged Washington’s historic patterns of unilateralism and interventionism. The growing economic influence of Brazil, the economic recession in the United States, and the decline of U.S. foreign assistance have all contributed to this trend. Interestingly, the reformist leanings on drug policy do not break down on ideological grounds, with Guatemala’s right-wing president joining left-wing presidents in Uruguay and Ecuador to advocate for an end to prohibitionist drug policies, while left-wing governments in Venezuela and Nicaragua strongly support the status quo.
Washington is suffering from a credibility problem. Even as the United States continues to advocate a “tough on drugs” approach overseas, at home state after state is relaxing marijuana laws. To date, 21 states and the District of Colombia have decriminalized it, 20 states have adopted medical marijuana laws (these states often overlap with those that have decriminalized), and two states—Washington and Colorado—are in the process of implementing legal, regulated cannabis markets. The irony is not lost on Latin American officials; for example, after the November 2012 U.S. elections when voters in Washington and Colorado approved the legalization initiatives (indeed, in Colorado marijuana got more votes than President Obama), the head of the incoming Mexican government’s transition team, Luis Videgaray, said, “Obviously, we can’t handle a product that is illegal in Mexico, trying to stop its transfer to the United States, when in the United States, at least part of the United States, it has a different status.” Not surprisingly, a vigorous debate on cannabis policy is now underway in Mexico.
Perhaps the most significant factor driving the debate in Latin America is the growing sentiment that it is their own people and governments that are paying the price for policies primarily designed to curb drug use in consumer countries like the United States, and that have made no dent in the drug trade or consumption. On the contrary, organized crime has spread, fueling violence, extortion, corruption, and the erosion of democratic institutions. As Argentinian sociologist Juan Gabriel Tokatlian points out, “the old balloon effect…is being superseded by a kind of Zeppelin effect by which transnational organizations—basically intertwining local narco-warlords, national drug barons and global money laundering tycoons—are reaching a point of generating a pax mafiosa in certain urban and rural areas.”
Shifts in trafficking have led to the proliferation of routes and increased local consumption. As the U.S. appetite for cocaine has abated (and other drugs such as illegal prescription painkillers have become more popular), use in Europe and parts of Asia has risen, generating new transportation routes from the Andean region—particularly Peru and Bolivia—through Brazil, Argentina, and Uruguay, often via West Africa. While still well below that of the United States, drug consumption in Latin America is steadily on the rise. In particular, use of paco, an addictive form of cocaine paste, has surged in those countries.
Meanwhile, approximately 80% of the Colombian cocaine still headed for U.S. city streets now transits through Central American countries that have little capacity to resist the drug trade’s corrupting influence. As Guatemalan President Otto Pérez Molina notes, “We have seen that prohibitionism and the war against drugs have not given the results hoped for. Quite the opposite. The cartels have grown in strength, the flow of arms towards Central America from the north has grown and deaths in our country have grown.”
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The April 2012 Cartagena summit marked a historic turning point. For the first time, most of the region’s presidents met in private with one item on the agenda: the analysis of drug policy and the exploration of alternatives. Reports circulated that the United States would only agree if a study was done under the auspices of the OAS, where it has considerable influence over the Inter-American Drug Abuse Control Commission (CICAD) as Washington traditionally names its director and provides a significant chunk of its budget. But skepticism about what the OAS would produce (shared by this author) has proven wrong.
The vast OAS report, “The Drug Problem in the Americas,” and a “scenario planning” exercise were released in May 2013. Numerous points are groundbreaking for an initiative by a multilateral organization. For example, the study recognizes the harm caused by present policies and calls for drug use to be treated as a public health issue (that is not to criminalize and incarcerate users). In stark contrast to the “one size fits all” approach long advocated by Washington, the report asks that countries be granted the flexibility to experiment with policies appropriate to their reality. Significantly, it allows for the possibility that such flexibility could result in changes to domestic and international laws, opening the door for discussion of international convention reform, a topic long considered taboo. Also one of the four possible scenarios, Pathways, is based on the premise that prohibitionist policies cause too much harm, and that regulatory frameworks should be explored, beginning with cannabis.
For the first time, in June 2013, drug policy was the thematic focus of the OAS General Assembly (GA) meeting, which brings together the region’s foreign ministers. Despite arduous negotiations—which revealed the extent of disagreement among countries on specific reforms—the final declaration calls for a multi-layered consultation process including a special session of the OAS General Assembly in 2014 devoted to drug policy, ensuring that the issue stays at the top of the hemispheric agenda. Whether or not the meeting will have any impact on UNGASS preparations remains to be seen, as countries such as Peru, Panama, and Nicaragua, among others, remain staunchly wedded to present policies, and the region’s powerhouse, Brazil, has taken a back seat, neither supporting nor opposing reforms.
Such divisions were also evident at the March 2014 CND. This year’s meeting included a high-level segment where intensive and conflictive negotiations revealed the deep schisms between those countries supporting reforms and those opposing any change at all. While some European and Latin American countries emerged as important advocates for reform-oriented language, countries such as China, Pakistan, and Russia argued fiercely in support of the status quo. In the end, agreement could not be reached on a myriad of issues, resulting in a meaningless declaration. The exercise clearly showed, however, that the “Vienna consensus” on a uniform approach to drug control has been shattered, leaving in its place polarization and near stagnation, given that the CND operates by consensus.
Yet a significant change emerged: for the first time a group of key Latin American countries worked together to promote a reform-oriented agenda. Though Mexican President Peña Nieto has taken a cautious approach, the Mexican delegation in Vienna embraced a leadership role, bringing together Mexico, Colombia, Guatemala, Ecuador, and Uruguay in pushing a joint strategy for open and transparent discussion at the 2016 UNGASS. As the Uruguayan OAS Ambassador, Milton Romani Gerner, noted in an interview, what was achieved was “a Latin American profile in the search for alternative strategies to overcome the ‘war on drugs’ approach.” The resolution eventually adopted on the UNGASS included much of the language that these five countries insisted on—no small feat given the formidable opposition by countries such as Russia and Canada.
Interestingly, Latin American officials supporting the drug policy status quo did not publicly oppose their colleagues’ efforts on the UNGASS resolution (perhaps because there was plenty of opposition from other countries). And the final declaration by the group of Latin American and Caribbean countries (GRULAC), underscored the need to take into account the specific circumstances of each of them. This has emerged as the one point of regional consensus: the need for tolerance in allowing countries to forge a different path.
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For its part, Washington is also advocating flexibility—up to a point. The U.S. State Department’s top drug official, William Brownfield, has stated emphatically: “The three international drug control conventions cannot be changed.” But how much flexibility the United States is willing to tolerate remains to be seen. The consistent message is that Washington is willing to discuss any alternative that falls within the confines of the existing, prohibitionist and repressive international drug control conventions.
The State Department’s drug bureau discourse is increasingly out of sync with domestic policies. When the Obama administration took office, the “drug war” rhetoric was immediately toned down and the administration began placing far more attention on domestic treatment efforts. The Affordable Care Act mandates coverage of drug treatment programs. In theory, anyone who wants it should be able to access treatment. The administration has also taken a cautious approach to the cannabis legalization initiatives in Washington and Colorado, explicitly stating that the federal government will not intervene as long as these states comply with eight Justice Department requirements, including preventing marijuana diversion to other states and the use of cannabis on federal lands. Attorney General Eric Holder is advocating forcefully for sentencing reform for low-level offenses and is working with legal advocacy groups and defense lawyers to develop a list of inmates incarcerated for drugs who could be granted presidential clemency. Given the U.S. role in pushing for the adoption of harsh drug laws across the region, the change in course sends a powerful message to other countries.
Despite all the talk of alternatives, reforms beyond Bolivia and Uruguay have been limited. Even in countries with governments advocating change, political obstacles loom large. In contrast to the United States, public opinion in Latin America by and large favors mano dura, or more hardline approaches. Some political sectors and the media criticize those promoting reforms as being “soft on crime,” feeding popular perceptions that more flexible drug laws and policies will propel increased drug use, citizen insecurity, and violence. As noted by Tokatlian, “most countries are still addicted to severe punishment in much of their domestic legislation.” Changing that legislation has proven to be quite difficult.
One of the much-needed reforms is rewriting drug laws to decriminalize possession for personal use and to ensure proportionality in sentencing; in other words, reduce the unjustly high sentences determined by the mandatory minimums. After years of internal discussion, Ecuador is finally adopting a new penal code that will move in that direction and taking important steps in access to evidence-based treatment programs. In Argentina, however, despite consensus on the need for reform a proposed new drug law has languished for years as other political battles take center stage.
Colombia has a similar bill pending, but it has also sunk into deep freeze until after the upcoming presidential elections. The draft law would both improve proportionality in sentencing and decriminalize small-scale coca and poppy producers. Despite its important reforms, the Bolivian government also refuses to consider rewriting its harsh drug law, Law 1008, until after the 2014 election, and has vehemently criticized any form of legalization. Uruguay’s cannabis regulation law, in contrast, could provoke a domino effect if implemented effectively, as similar legislation is under consideration in Chile, Mexico, Jamaica and other countries.
Both Colombia and Guatemala have launched commissions to propose drug law reforms; neither country, however, has moved forward with any significant changes domestically, despite the presidents’ active promotion of regional and international debate. In Colombia, such reforms are more likely if President Santos wins reelection and the peace negotiations with the FARC proceed. In Guatemala, however, with President Pérez Molina leaving office in January 2016, the prospects for meaningful internal change become increasingly remote. It remains to be seen whether or not domestic drug control policy in Mexico will be brought in line with the regional and international leadership role the country is seeking with regards to the 2016 UNGASS.
Actual concrete reforms to prohibitionist drug policies still seem a long way off and the region remains divided. Yet, the advances made in beginning the difficult task of fundamentally changing the existing international drug control paradigm—from one based on criminalization and repression to one based on public health and human rights—cannot be underestimated. Uruguayan Ambassador Romani sums it up: “Now there is a space for debate that is totally legitimized. Second, a flexible interpretation of the conventions has now gained legitimacy. And finally, the need to change present policies has been accepted. There is no longer any doubt of the legitimacy—and need—to seek alternative drug policies.” While it is too soon to celebrate the end of the 40-year so-called war on drugs, the momentum for meaningful reforms is building.
Coletta A. Youngers is a Senior Fellow with WOLA, the Washington Office on Latin America, an associate with the International Drug Policy Consortium (IDPC), and a member of the research team, Colectivo de Estudios Drogas y Derecho (CEDD), based in Aguascalientes, Mexico.
Read the rest of NACLA’s 2014 Summer Issue: “Reimagining Drug Policy in the Americas“
