Notes on the Colombian Government’s Draft Decree to Restart Coca Fumigation

On December 30 Colombia’s Ministry of Justice issued a draft decree that would allow it to re-start a U.S.-backed program of aerial herbicide fumigation in coca-growing zones. This program used aircraft to spray more than 4.4 million acres of Colombian territory between 1994 and 2015.

In 2015, a UN World Health Organization literature review found that glyphosate, the herbicide used in the program, was “probably carcinogenic to humans.” In 2018 and 2019, two California juries gave large awards to three U.S. plaintiffs who claimed a link between heavy use of glyphosate and cancer, particularly non-Hodgkin’s lymphoma. The government of Juan Manuel Santos suspended the coca spraying program in late 2015, but took years before replacing it with any other effort, like alternative livelihoods or manual eradication. As a result of this and other factors, coca cultivation increased dramatically in Colombia. By 2017, more than 119,500 families were making a living off of the crop.

Now, the government of Iván Duque is bringing fumigation back. The U.S. Department of State quickly put out a brief statement celebrating Colombia’s decision.

The decree is 20 pages long, and lays out some of the review, consultation, and complaint processes that should apply to a renewed fumigation program. We’d been expecting this document since July 18, 2019, when Colombia’s Constitutional Court issued a ruling, modifying a 2017 decision, softening the requirements that the government would have to fulfill in order to start fumigating again.

What happens next?

The draft decree is now undergoing a 30-day citizen comment period. Then, it will go to Colombia’s National Drug Policy Council (Consejo Nacional de Estupefacientes), a grouping of ministers, the police chief, the chief prosecutor, and the inspector-general, which must then vote to re-start the program. That vote probably won’t happen until at least March or April. The Colombian journalism website La Silla Vacía sees the process going on for months more:

Several more steps await: that the final decree be issued; that the Defense Ministry formally present a spray program, adjusting to this decree’s requirements, before the National Drug Policy Council; that this Council approves it; and that the Ministry obtains an environmental license for that program. All of that will take several months, and probably most of the year.

The Court’s requirements

Though it loosened restrictions on a new spray program, the Constitutional Court still requires that:

• The regulations governing spraying come from a different agency than the one charged with spraying.
• The regulation must be based on an evaluation of health, environmental, and other risks. That evaluation must be “participatory and technically sound,” and must happen continuously.
• Newly emerged risks or complaints must receive automatic review.
• Scientific evaluations of risk must be rigorous, impartial, and of high quality.
• Complaints about health, environmental, or legal crop damage must be processed in a “comprehensive, independent, and impartial” way that is “tied to the risk evaluation.”
• “Objective and conclusive” evidence must demonstrate “absence of damage to health and the environment,” though the Court says that absence doesn’t need to be total.

Limits on spraying

The draft decree excludes from aerial spraying “natural parks of Colombia, whether national or regional; strategic ecosystems like páramos, wetlands as defined by the Ramsar convention and mangroves; populated centers; settlements of populations; and bodies of water.” According to Colombia’s Semana magazine, “researchers consulted…calculate that 70 percent of illicit crops are located in territories where aerial fumigations aren’t viable” under the decree’s definitions because “they are protected zones, because prior consultation is required, or because they are out of the planes’ reach for logistical reasons.”

Oversight, evaluation, and complaints

As in the past, Colombia’s National Police Anti-Narcotics Directorate, a heavy recipient of U.S. assistance, would manage the new spray program. The draft decree gives crucial oversight and approval responsibilities to three small agencies elsewhere within the Colombian government.

• The Colombian Agricultural Institute (ICA), within the Agriculture Ministry, will be charged with processing and adjudicating complaints about the inadvertent spraying of legal crops. It must do so within 15 days, though the decree allows very wide latitude for postponements. (During the past spray program, people whose legal crops suffered damage from fumigation had to go to the Anti-Narcotics Police, which approved only a small single-digit percentage of compensations. Police usually responded that “we didn’t spray there that day,” “there was coca mixed in with the legal crops”—which many farmers denied, or “the zone is too insecure to evaluate the alleged damage.”)
• The National Environmental Licensing Agency (ANLA), an Environment Ministry entity established in 2011, will approve aerial eradication projects, perform initial studies, and monitor their environmental impact, while processing complaints about environmental damage.
• The the National Health Institute (INS), an entity within the Health Ministry, will monitor the human health impact of aerial eradication, carrying out continual evaluation of health risks, while processing health complaints.

These agencies seem quite small, with sporadically updated websites. In some cases they will have to depend on the National Police for logistical support necessary to perform their oversight work. Their capacity to handle a large docket of complaints and monitoring requests is far from assured.

Participation and consultation

The decree states that the Anti-Narcotics Police must “announce to local and regional authorities, as well as to the citizenry in general, the initiation of spray activities.” This announcement must explain complaint and evaluation mechanisms, and use local media. After spraying in an area, the Narcotics Police must “guarantee participation spaces with local authorities and with the citizenry in general, in which comments, complaints, and suggestions may be expressed.” Conclusions of these “participation spaces” will be included in the Anti-Narcotics Police’s monthly report to the ANLA.

What the peace accord says

Semana notes that the Constitutional Court had “immovably” required the Colombian government to build a spraying policy “that complies with what was established by the FARC peace accord,” adding that “the expression ‘peace accord’ isn’t mentioned even once in the decree’s text.” The peace accord (section 4.1.3.2) limits aerial spraying only to cases in which communities have not agreed to crop substitution, and where manual eradication is “not possible.”

In cases where there is no agreement with the communities, the Government will proceed to remove the crops used for illicit purposes, prioritising manual removal where possible, bearing in mind respect for human rights, the environment, health and well-being. If substitution is not possible, the Government does not waive the instruments that it believes to be most effective, including aerial spraying to ensure the eradication of crops used for illicit purposes. The FARC-EP consider that in any case of removal this must be effected manually.

Tags: Coca, Illicit Crop Eradication

January 8, 2020