Colombia: drugs and national sovereignty
Gearóid Ó Loingsigh
26 August 2022
The recommendation from the Colombian Truth Commission to revisit the issue of drugs and the election of Gustavo Petro as president affords us a new context in which to discuss the problem of illicit drugs. However, we may make the same mistakes as before.
The Colombian state has always implemented repressive prohibitionist policies that concur with US government policies and the official positions of the UN expressed in various treaties and resolutions starting with the Single Convention of 1961, then the Convention on Psychotropic Substances (1971) and the Convention Against the Illicit Trafficking in Narcotic Drugs and Psychotropic Substances (1988) and various General Assembly resolutions.
The Colombian oligarchy has rarely questioned the logic of the War on Drugs. One exception was when Samper when he was president of the ANIF (National Association of Financial Institutions) put forward the idea of legalising marijuana, and then in 1980 he put forward a proposal to legalise the drug traffickers.
The strength of the underground economy is reaching such a point that repressive measures are not enough; the scale of the problem goes beyond the ability of the instruments to regulate it. New alternatives are required. We are, at the end of the day, at a point of choosing between recognising the mafias and rerouting them or to be ignored by them and we will all lose our way. So as we proposed, exactly one year ago, to legalise marijuana as the only way of legalising that income, we feel it is convenient to propose the need to give these illegal capitals institutional escape valves; the setting up of wealth amnesties for these huge fortunes, the chance to invest them in enterprises other than property holdings and the concession of special incentives so that they are publicly registered, would be the three basic ideas to prevent these capitals and their owners, due to their illegality, from destroying our institutions and ourselves or buying them or us, which is the same thing at the end of the day.(1)Obviously, his plan did not work as it was not accepted by the Colombian or US governments and as he acknowledged, legalising marijuana without counting on the northern Empire “ would be little more than the tantrum of a spoilt child… [which is why it is proposed] a committee be set up comprising representatives of both nations to fearlessly study the problem of legalising marijuana to make recommendations taking into account the reality of production in Colombia and the evidence on consumption in the United States.”(2)
A recently published article argued that we can go beyond the international treaties and advocate for an interpretation of Colombian legislation that gives priority to human rights laws and treaties, over and above the international treaties on illicit drugs, insisting that it is not the case that Colombia “must apply at all times international law in every case. Our country has significant room for unrestricted manoeuvres to regulate that market as a Human Rights, International Humanitarian Law and Peace, issue, not just in terms of public health (harm reduction) or substance control (prohibition and criminal policy).”(3)
In philosophic terms the arguments put forward have a degree of truth about them, as human rights and peace take precedence over international policies on drugs. But only in philosophical terms. Law is merely a codification of power relationships and in the debate on drugs Colombia has no power. The debate on drugs has a legal framework to it, but it is not about law. It never has been.
The US got involved in the issue of drug control and prohibition in order to curry favour with China at the beginning of the 20th century. The first international conference to look at the issue of prohibition and the control of opium was held in Shanghai in 1909. The US gave their support to China and hoped that China would favour it with trade deals. Publicly, as is the case with Colombia, they spoke of the harm that opium caused and the moral need to eradicate this evil, but the economic and political interests were always present.(4) In the process of drawing up and ratifying the 1961 Single Convention, the USA obtained an exclusion on alcohol and tobacco from its terms of reference and it was not a question of public health, but rather because the USA, Great Britain and France and other countries had and still have sizeable industries based on these two drugs, although between 1920 and 1933, during the prohibition era, the USA had a different perspective. If Jamaica had been a world power in 1961, maybe recreational alcohol would be illegal and recreational marijuana would be legal. This can be seen in the statistics. At the time of the Single Convention alcohol and tobacco killed more people in the USA than illegal drugs did. Despite the war on drugs, the number of deaths attributable to overdoses in that country has increased dramatically. In 1997, a few years before Plan Colombia was announced, 15,973 people died from all illegal drugs and the abuse of pharmaceuticals. In 2021 that figure reached 107,622 deaths and of them, only 24,538 were due to cocaine use. The overwhelming majority of them, 78,238,(5) were due to synthetic opiates such as fentanyl. Of course, synthetic opiates are not regulated by the Single Convention of 1961 but by the Convention on Psychotropic Substances of 1971 and that treaty leaves it in the hands of each country how to regulate, distribute and consume those substances. And the government in Washington is not going to declare a war on those who finance its electoral campaigns and on the pharmaceutical industry and the blood suckers of the health system.
If we look at alcohol, we see that between 2015 – 2019, more than 140,000 people died each year in the USA due to alcohol abuse.(6) Another 480,000 die from tobacco consumption, i.e. 20% of all deaths per year. Furthermore, for every person that dies there are a further 30 who suffer from serious illnesses caused by tobacco, without even looking at the impact on the economy which in 2018 was calculated to be US $ 600 billion per year.(7) So when we talk about drugs, this debate has never been about public health and neither will it be resolved through legal discussions.
As for the regulation of drugs, there exists not only rules but a hierarchy of instruments. One of the bodies with greatest power is the International Narcotics Control Board (INCB), a UN body dominated by the US since its foundation. It is an almost quasi-judicial body and one that usurps functions it does not have. However, its voice is that of its master: the USA.
The treaties do not require the complete prohibition of anything but rather they regulate and control their use for scientific and medical purposes, so various countries have entered the medicinal cannabis market with the leaders being Canada, UK, and Israel. Petro has stated that he wants the peasants in Colombia to control that business and not countries such as Canada. Well, perhaps, but there is a problem with that market, which exists for all crops. Colombia’s peasants grow coffee, but they generally sell it as green bean coffee, i.e. unprocessed. In 2020 Colombia exported 694,928 tonnes of green bean coffee, occupying third place globally (second in terms of value) but only exported 11,268 tonnes of roasted coffee. And that is following years of trying to promote the niche special coffee sector.
The same year, Germany exported 340,000 tonnes of green bean coffee. It is a country that for climatic reasons does not produce coffee, yet it managed to export half the amount Colombia exported. But when we look at roasted coffee, i.e. the end product where most of the profits are made and the so called value added is realised, it is clear to be seen who dominated the market. Germany exported 245,626 tonnes followed by Italy with 239,579 tonnes. In fact, the 15 top exporters are European countries, Canada, and the USA.
Colombia’s exports of green bean coffee raised US $2,453,943,000 and roasted coffee US $68,787,000 compared to Germany which exported green bean and roasted coffee with a value of US $972,948,000 and US $1,691,323,000 respectively. Switzerland has the most expensive coffee with its 95,858,000 tonnes raising US $2,846,297,000. It is worth bearing in mind that part of Colombia’s exports are between the same company, such as Nestlé Colombia, exporting to Nestlé Germany or Switzerland. There is a power relationship. So, it is not enough for the Colombian peasants to be the owners of the marijuana crop, nor that they export marijuana. There is a need for a state-owned national marijuana industry which would process the peasants’ crops and produce the required medicines, with the respective permits from the INCB, as without those permits these products cannot circulate freely outside of Colombia. If there is no state industry set up, history will repeat itself with foreign companies and some national ones.
But it is not that simple. Permission has to be sought from the INCB. One of the INCB’s functions is to calculate the medical requirements of various substances controlled under the Single Convention. There is a capitalist market for the sale of drugs like opium and its derivatives such as heroin, morphine and other opium-based pharmaceuticals, coca leaf and cocaine, and cannabis. There has been very little discussion in Colombia about the legal drugs markets and it is spoken of in very simplistic terms that it could be legalised without much further ado and that there exists an enormous world market for the medicinal use of these plants and their derivatives. It is not the case. The largest market is for opium. The global coca and cocaine market is very small. The INCB in its technical report on global requirements for drugs states:
Peru is the only country to have exported coca leaf for the global market since 2000. In 2020, its exports amounted to 148.9 tons, all of which were imported by the United States to be utilized for the extraction of flavouring agents and the manufacture of cocaine as a by- product. The Plurinational State of Bolivia reported the production of 30,954 tons in 2020 for the use allowed in the country, in accordance with the reservation made by that State in 2013, when it reacceded to the 1961 Convention as amended. In 2020, licit global manufacture of cocaine decreased considerably, to 18.3 kg, while licit consumption remained relatively stable at 396.4 kg.(8)As can be seen, the market is not that big. Peru exported just 148.9 tonnes of coca leaf in 2020. According to the UNODC calculations a peasant growing illicit coca produces 6.4 tonnes of leaf per hectare per year.(9) According to the UNODC, in 2020, Colombia produced 1,228 tonnes of illicit cocaine.(10) Global medicinal cocaine production stood at 18 kilos in 2020, a figure below the 359 kilos of 2017 in a fluctuating market, though global consumption was 396.4 kilos. It is clear that Colombia cannot continue with the same level of production given that Peru already supplies what the world needs and indigenous internal consumption in Colombia is the hands of those same communities.
The cannabis market has greater potential, but it is not as big as some think and there already are countries that dominate the market. In 2020 global cannabis stocks were 1.701.340 kilos. However, Colombia has entered this market quite late.
Until 2010, the United States was the only country reporting the licit use of cannabis for medical and scientific purposes. Since 2011, however, an increasing number of countries have started to use cannabis and cannabis extracts for medical purposes, as well as for scientific research. In the past 20 years, the global production of cannabis has therefore seen an increase, amounting to 650.8 tons in 2020, a further increase compared with the 468.3 tons recorded for 2019…Two countries, Canada and the UK dominate the market and together account for 71.7% of world production compared to Colombia’s 2.8%.Production was reported by the United Kingdom (238.7 tons, or 36.7 per cent) followed closely by Canada (227.8 tons, or 35 per cent), Spain (84.4 tons, or 13 per cent), Israel (24.6 tons, or 3.8 per cent), Australia (18.4 tons, or 2.8 per cent), Colombia (18.1 tons, or 2.8 per cent), North Macedonia (12.2 tons, or 1.9 per cent), Uruguay (6.9 tons, or 1.1 per cent), Denmark (6.5 tons, or 1 per cent), the Netherlands (5.9 tons, or 0.9 per cent), Uganda (4.4 tons, or 0.7 per cent) and Thailand (1.4 tons, or 0.2 per cent).(11)
There is another factor which is not taken into account and it is that medicinal cocaine is produced under the same conditions as any other pharmaceutical with quality and purity controls and of course, they don’t use cement as a chemical precursor. This process will not be in the hands of the peasants, for obvious reasons, and so the peasant is reduced to producing raw materials for the pharmaceutical industry and gets a lower price for his legal product.
Colombia can regulate many aspects of the war on drugs without any major reference to the treaties, but it cannot abandon them completely, unless it wants a fight on its hands with the USA and other European countries that agree with the prohibitionist regime. Any rupture with the treaties has consequences to it. If Colombia legalizes coca leaf without the necessary procedures of the INCB, it won’t be able to do much with that coca. The exporting of it would be drug trafficking, as the Single Convention has very particular language and it prohibits the coca leaf and all its derivatives. If it decides to manufacture medicinal cocaine there is a problem with it. It cannot export it without the proper permits unless it wants to be accused of drug trafficking and honestly, there is not a lot of land needed to supply what is required. There simply isn’t a market for it, even if they get the permits.
Any production that is considered to be illicit would bring serious consequences for the Colombian economy. The USA would take measures against the country, such as a negative vote in any credit body, a suspension of export and import credits and it may take other measures, even sanctions. It is a relationship of power and Colombia has none.
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Recreational Use
Of course, medicinal uses are permitted and regulated, but the recreational uses are banned. The state of Colorado legalized cannabis production for recreational purposes and Uruguay did something similar but in a regulated manner with the sale controlled by the state and moreover through pharmacies, cannabis clubs and home growers. But both of these ran into the legal reality of the banking system.
In eight US states, whilst the local system of each state allows for the growing of cannabis for recreational purposes, (and 20 more for medicinal purposes) federal laws prohibit it and classify the profits generated as ill-gotten gains and the banks that receive such funds run the risk of being accused of laundering drug money. The legal industry has had to fall back on diverse mechanisms to introduce the money into the financial system. The industry “is forced by the financial system to dispense with its services or behave illegally in order to remain within it”(12) i.e., many transactions are in cash or they resort to maneuvers more akin to money laundering, but for an industry that is legal in eight states.
Uruguay also legalized and regulated the recreational use of cannabis, with a system of clubs, home growing and pharmacies, with the sale controlled by the state. However, not even the official state banks want to receive the money generated by the industry. As Galain points out, it is a fully bancarised country, where the population is obliged to carry out all their transactions through the banking system.(13) But not even the Bank of the Republic accepts these funds.
For the Uruguayan financial system the international banking norms seem to take precedence over national norms that regulate public health, public security and human rights as Uruguay has argued on repeated occasions before the UN. Faced with this situation and following on from the public demands of the ex-president José Mujica that a “boycott” of the regulated system not be put in place by the current government , the Minister for the Economy – Danilo Astori – contended that a “balance” had to be found between the national norms and the banking regulations that apply international directives, or even, the federal regulations of the USA.(14)If this is the case with Uruguay as regards cannabis, it is certain that the banks are not going to tolerate funds from the production of coca, cocaine or cannabis as it places in jeopardy their banking correspondence functions in the USA that they need in order to operate in dollars. It is also worth recalling that Uruguay once argued for the importance of health norms, human rights treaties etc., but even so, it couldn’t do it on its own.
If Colombia wants to legalise or decriminalise (which is not the same thing) any link in the chain of the production of illicit drugs it must count on the permission and endorsement of the Empire, as Samper pointed out many years ago, or on the contrary it must be willing to face up to an international fight. If it wants to win that fight it should rely on health professionals, journalists, academics, drug user associations and all those who have been fighting against the prohibitionist model for years. Colombia is a late entry to a debate that has developed in a more profound manner in other countries, amongst them some Latin countries such as Bolivia.
Otherwise, the proposal will be just pure demagogy which will not get us anywhere. And bearing in mind the reality of the policies of the INCB and the USA, a fight or the surrender of Petro is guaranteed. In the next four years, neither the INCB nor the USA are going to voluntarily change their positions on drugs.
Notes
(1) Samper citado por Tokatlian, J. G (s/f) La Polémica Sobre La Legalización De Drogas En Colombia, El Presidente Samper Y Estados Unidos http://www.mamacoca.org/junio2001/tokatlian_legalizacion.htm#_ftn35
(2) Ibíd.,
(3) Doncel Barrera, Y. (20/07/2022) Del prohibicionismo a la soberanía constitucional: el falso dilema de la política de drogas http://alaorilladelrio.com/2022/07/20/del-prohibicionismo-a-la-soberania-constitucional-el-falso-dilema-de-la-politica-de-drogas/
(4) Bewley-Taylor, D.R, (1999). The United States and International Drug Control 1909-1997, London: Pinter. pp 18 y 19.
(5) See https://www.cdc.gov/nchs/pressroom/nchs_press_releases/2022/202205.htm
(6) See https://www.cdc.gov/alcohol/features/excessive-alcohol-deaths.html
(7) See https://www.cdc.gov/tobacco/data_statistics/fact_sheets/fast_facts/index.htm
(8) INCB (2021) Narcotic Drugs: Estimated World Requirements for 2022 p.22 https://www.incb.org/documents/Narcotic-Drugs/Technical-Publications/2021/Narcotic_Drugs_Technical_Publication_2021.pdf
(9) UNODC (2022) World Drug Report: Drug Market Trends. United Nations Publications p. 16
(10) Ibíd.,
(11) INCB (2021) Op. Cit. p.110
(12) Galain Palermo, P. (2017) Mercado Regulado de Cannabis vs Política Bancaria p. 1 http://olap.fder.edu.uy/wp-content/uploads/2014/08/galain.-29-agosto-2017.pdf
(13 )Ibíd., p.3
(14) Ibíd., p.4