WAR ON DRUGS
DECERTIFICATION: Should the Approach be Unilateral or Multilateral

Major Jose Cristy, USMC

Certification or lack thereof, is an annual rite of passage for countries that have been identified as producers, processors, or transshipment facilitators of illicit narcotics and are not in compliance with the 1988 United Nations Convention Against Illicit Traffic in Narcotics Drug and Psychotropic Substances. The statute that governs the United States Drug Certification procedures is the Foreign Assistance Act of 1961 (FAA), as amended in 22 U.S.C. B2291. This law requires that the President submit to the United States Congress a list of all countries that fail "to take legal measures to outlaw and punish all forms of illicit drug production, trafficking, and drug money laundering, to control chemicals that can be used to process illicit drugs, and to cooperate in international efforts to this end." Those countries identified by a presidential memorandum will be then: (1) Certified - the administration feels the country is fully cooperating with U.S. counter-drug efforts; (2) Conditionally Certified - the country's performance in counter-drug cooperation does not quality for full certification, but U.S. national interest prevails; or (3) De-certified - certification is denied due to lack of full cooperation.

This unilateral system has been in place since 1986. The Department of State argues that "the purpose of the law is not to punish; it is to hold every country to a minimum acceptable standard of cooperation . . ." However, the effect of de-certification is the immediate loss of U.S. economic and military aid, an automatic "no" vote from the U.S. on economic assistance and severe trade restrictions. Once identified as a pariah state, the economic, political, and social blow to a nation is significant. Especially since certification is an all or nothing proposition, there is no reward for effort.

Many nations feel this unilateral approach hinders the U.S. efforts in the war on drugs. In fact, the literature reveals that a strong resentment against the current drug certification process is prevalent in the international community, particularly among the Latin American and Caribbean countries. The questions are: could the certification procedure, which has not been revised in over a decade, stand some scrutiny? Is the international community ready for a multilateral approach to this issue?

This asymmetrical methodology is an abomination in an era that is seeing the consolidation of multiple democracies and increasing regional integration. Although the certification process affects many countries, no countries are affected more than those in Latin America. Since many of these new emerging democracies are still struggling to be treated as equals by the United States, they are vexed by this high-handed procedure. Additionally, several countries in the region have very strong economical ties to the United States and are dependent on U. S. foreign trade and military aid in order to fund counter-drug programs. De-certification further erodes their capacity to act.

Although the U. S. Drug Certification mechanism applies to all drug producing, processing and transshipment countries, this paper will be limited to crafting a policy for Latin American and Caribbean countries. The policy options explored here may or may not be applicable to other areas of the globe. The paper will first explore some of the political maneuvering that has lead to the possibility of implementing a multilateral approach to certification in the Western Hemisphere. Then, it will posit two policy options that the United States, Latin America and the Caribbean may consider as a way to move from the existing unilateral approach to a more inclusive multilateral approach in the certification process. Finally, it will recommend what would seem to be an appropriate course of action to follow in modifying the certification process for the Latin American region.

BACKDROP

Even before the second Summit of the Americas held in Santiago, Chile, this year, the United States Drug Certification Policy has been a source of irritation among Latin American nations. While there is a broad consensus for a drug certification policy within the region, there is a marked disagreement on what form this policy should take. Influential members of government, such as Senators Kay Bailey Hutchison of Texas and Pete Domenici of New Mexico have recognized that the current process for drug certification is flawed. Even the current drug czar, Barry McCaffrey, is on record as opposing the current certification process and endorsing a strategy of increased international cooperation. Things were made worst by the recent de-certification (1997) and the "national-interest" certification of Colombia, a country in the region that many see as "hav[ing] made enormous efforts to eradicate drug trafficking." Another negative factor is the perception within the Latin community that not all nations are treated equally within the certification process, as the full certification of Mexico seems to confirm.

The current process, which was enacted by Congress in 1986, requires that the President of the United States, under Section 490(b) of the Foreign Assistance Act (FAA) of 1961 certify to Congress:

"major drug producing and/or major transit countries/dependent territories that have cooperated fully with the United States, or taken adequate steps on their own, to achieve full compliance with the goals and objectives of the 1988 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances."

The document that provides the factual basis for narcotics certification is the Department of State's International Narcotics Control Strategy Report (INCSR). Once a country has been identified in the INCSR, in November of each year, FAA Section 490 requires that fifty percent of certain types of aid be withheld pending the Presidents final decision in March of the subsequent year. In 1997, of the thirty-two countries considered in the certification process, sixteen were from the Western Hemisphere region. All except Belize and Colombia received full certification.

The above numbers highlight how prevalent the problem is in the region. It is not an understatement to say that the drug-trade is a threat to regional security and prosperity. The U. S. government, instead of seeking a regional solution, has made unilateral certification one of the cornerstones of its strategy in the war against drugs. States in a colloquial manner, the U.S. is footing the bill, therefore, it has the right to institute whatever policy supports its national interest. This unilateral approach has succeeded in alienating many of the partners in the struggle. Even the Department of State, which is the lead agency in international narcotics control, realizes that many governments resent the current policy of annual certification. The U. S. certification policy has a direct impact on the countries in the region, both in political and economic terms.

While advocating that political will and international effort are key components of the counter-narcotic strategy, the U. S. seeks to pursue a course of action that other countries in the region view as increasingly antagonistic. This according to the 1997 INCSR has led "Mexico, Venezuela, and Colombia to propose total rejection of unilateral actions on economic, social and anti-drug policy matters." Countries in the region may resent the current policy, a procedure that holds all the nations in the region accountable has to be part of a realistic anti-drug strategy.

EXPLORING THE OPTIONS

If political will and international effort are the pillars for an effective anti-drug strategy, then the United States should seek a policy that is inclusive and progressive in nature, rather than exclusive and penalizing. Tow policy options are available: 1) conditional unilateral qualification; and/or 2) multilateral approach.

Conditional Unilateral Approach Option

The United States could continue to maintain the current course of action with respect to the certification procedure with the modification of allowing for what Senators Hutchison and Domenici call "qualified certification."

Advocates for the current process argue that "it has proved to be a remarkably effective diplomatic instrument for keeping all governments aware of the need to pull their weight in the international drug effort." However, the certification process as it is currently designed is neither inclusive nor progressive. It could be argued that sanctions do nothing to enhance political will or international cooperation in the counter-narcotics arena. Nonetheless, certification depends mainly on the individual country, since the country itself decides how much resources, manpower and effort will be assigned to fight the production, processing, and transshipment of narcotics. While the current certification process is not based on "shared responsibility, reciprocity, balance, and consensus among the states," it holds the individual countries responsible for their efforts, by scrutinizing their failure or success in the international forum.

The dilemma for the United States stems from the fact that the current law, FAA Section 490, requires that the president either certify, de-certify, or certify vital national interest only. Any country that is less than fully certified automatically is subject to sanctions. Therefore, as stated by Senator Domenici "the fatal flaw of the current law is that it rigidly requires the president to make a choice between 'full cooperation' and 'no cooperation' when in reality many countries fall somewhere in between."

The creation of a "qualified certification" category would recognize the efforts made by the individual country, even if they did not meet the UN standard, recognizing the attempt made by the country's people and government. Furthermore, this proposal which is very similar to the granting of probation, would require that high-level personnel from the military, judiciary, legislative and executive branches of government meet with their counterparts in the respective country to map out goals and strategies for the next review. This procedure would stress U. S. coordination and direct cooperation with the countries of the region. The modification would allow for the removal of the confrontational stand against the current system and bringing to the forefront the importance of dialogue, support and promotion of mutual responsibility, all which are meaningful confidence building measures. Additionally, with this approach the U. S. would be in a position to influence and fortify, from a position of "moral high ground," those same institutions the drug trade is destroying in these nascent democracies. In this manner the United States would be positively influencing the judiciary, legislative, executive and military institutions of the region.

Multilateral Approach Option

Although the Second Summit of the Americas did not produce any earth shattering breakthroughs, the one area Latin American leaders felt positive about, was the possibility of modifying the current U. S. Drug Certification process. The International Herald Tribune printed the following, under the headline of "Summit of the Americas: A Meeting of Equals at Last; Latins No Longer Junior Partners":

"Latin American officials, for instance, believe that a great leap forward was made in the creation here of a Multilateral Counter Drug Alliance that would use the Organization of American States (OAS) as a tool to evaluate each country's record of combating drug trafficking."

Shortly after the conclusion of the summit, the OAS, more specifically the Inter-America Drug Abuse Control Commission (CICAD), started to lay the foundation to develop a multilateral process to "evaluate national and regional progress in fighting illegal drugs." A multilateral system would help to solve the current antagonism present in the region toward the U. S. certification methodology. Further, it would assist supporting the development of strong civil and government institutions, due to its high degree of legitimacy. This laudable and viable effort on behalf of the OAS marks the first time that the nations of the region have sought to address the certification problem in unison. However, the CICAD seeks to establish a certification mechanism that would not involve sanctions, which the United States would in all probability find unsatisfactory. This one element of the policy -- no sanctions -- could very well be the demise of the proposed system.

Mrs. Elaine Baker, the Jamaican delegate to the CICAD, has clearly stated that any multilateral mechanism developed by the OAS should be consultative and transparent, as well as non-punitive. The literature researched to date reflects that most of the thirty-two member nations, with the possible exception of the U. S., support a non-punitive approach. A multilateral system based on "respecting each country's jurisdiction, sovereignty, and legal structure . . .," while noble, would lack a mechanism that would ensure compliance and accountability, the very elements that make the current U. S. policy so potent. This could be overcome if the OAS procedure had a built-in penalty system. Penalties could range from probation to economic sanctions and be implemented through a series of well-defined thresholds.

Another element that is lacking in the CICAD approach is funding. Any policy without budgetary backing is meaningless. Any multilateral system would require significant economic resources to develop and implement. Significant economic cost would be associated with anti-drug programs that focus on strengthening institutions -- ranging from the peasant society to government -- in the countries of the region. Although a multilateral system would have significant legitimacy, it would lack credibility if the enforcement procedures were neglected. However, this could be overcome by a "fairshare" approach, measured either in resources or manpower hours contributed and monitored by the OAS.

A more credible multilateral mechanism would be one were the participating nations not only promote shared responsibility, reciprocity, balance and consensus, but has an establish procedure for effectively dealing with nations that fail to meet the OAS expectations that goes beyond dialogue, support and promotion of mutual confidence.

CONCLUSION

The narco-trafficking problem in the region is significant and complex. This problem does not only threaten civil society as a whole, but also represents what Tom Clancy calls "a clear and present danger" to the international community. The assumption that political will and international effort is needed to effectively combat this threat provides a solid foundation from which to build a multilateral strategy. Nonetheless, there is a long and arduous road ahead before a sufficiently capable multilateral system can be developed and implemented. The U. S. drug certification policy, although severe and at times slanted, is in fact a significant and effective tool in the U. S. anti-drug strategy. However, this essay argues that it is time that the U. S. modify the certification mechanism and move to a more inclusive and progressive approach to the problem.

Samuel R. Berger, the National Security Advisor to the President, maintains that "[we] would have to obviously have a long discussion with congress before there were any changes in U. S. law." This may well be the case, but Senators Hutchison and Domenici have already begun to lay the groundwork within congress that will permit the modification of administration policy.

What should that modified policy be? This essay recommends that the United States needs to adopt an incremental approach towards multilateral certification. The first step would be to grant the administration authority to "conditionally qualify" countries that fall short of the United Nations resolution and the conditions established by the FAA Section 490, but have demonstrated a clear resolve in combating the threat of drugs. This eliminates the all or nothing approach, and recognizes effort and sacrifice. Additionally, a conditionally qualified country would work with a committee of experts in illegal drug related matters (composed of members of the OAS) to develop goals and strategies that would lead to full certification. Failure to meet the developed standards prior to the administration's review would result in de-certification and application of the sanctions required by law. This procedure, which would be transitory in nature, would remain in place for five years or until a multilateral system can be developed by the CICAD and approved by all participating countries. If the OAS fails to draft a credible and sustainable plan, the United States would revert back to unilateral certification.

Second, the OAS has five years to develop and institute the concepts through which the Multilateral Counter-Drug Alliance would evaluate a country's record in stemming the flow of illegal narcotics to include sanctions for production, processing, transshipment, money laundering and consumption. The multilateral policy should have three main pillars: funding, cooperation, and sanctions. The OAS multilateral policy should be sufficiently funded to develop, support, and promote programs that fortify civil society and government institutions throughout the region in the struggle against drugs. Additionally, the program should emphasize cooperation among the actors, thus capitalizing on unity of effort. Finally, the multilateral system must have a way of penalizing those nations that fall short of the program goals. Holding a nation accountable for its action in the international community will assist in developing a sense of responsibility and teamwork among the participants.

The above counter-narcotics policy would contribute to eliminating the perception among our Latin American allies that they are junior partners in combating the drug trade. It also supports the U. S. strategy of engagement and support for democracy, without sacrificing the country's national interests. Furthermore, the implementation of an inclusive policy would ultimately lead to enhancement of a cooperative partnership that seeks coordination and integration of the region's efforts in the war against drugs.

MAJOR Jose Cristy is currently stationed at Headquarters, U.S. Marine Corps in Washington, DC, as a regional FAO desk officer for Western Europe and Sub-Saharan Africa. He is a frequent contributor to the FAO Journal.

1999, Foreign Area Officer Association
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