2. MARCO NORMATIVO NACIONAL DE LA CONSULTA PREVIA
2.1. LEY N° 29785 (LEY DE CONSULTA PREVIA) Y SU REGLAMENTO (DECRETO SUPREMO N°
2.1.1. ASPECTOS GENERALES
The Caribbean’s geographic location has long been among the region’s most lucrative commodities. For centuries, goods and people have moved between North and South America, between Africa and the Americas, and between Europe and the
Americas, all passing through the Caribbean Sea. Since the completion of the Panama Canal, that traffic expanded to include commerce and migration from Asia and the Pacific utilizing the Caribbean as a transshipment point for destinations farther afield. At the convergence of major sea lines of communication (SLOCs), the Caribbean Basin is home to two of the world’s largest chokepoints (the Panama Canal and the Caribbean Sea).15 Ten percent of American trade still passes through the canal, while countries such as Chile, Ecuador, and Japan are even more dependent on safe passage through these shipping lanes.16 The Florida Strait, the Mona Passage, the Windward Passage, and the Yucatan Channel are all sea lines crossing the Caribbean to join Atlantic, Pacific, and Gulf of Mexico shipping.17 Today, the Caribbean remains at “‘the vortex of the
Americas…’ a bridge or front between North and South America” and the wider world.18 And while the significance of this bridge was “dramatised in geopolitical terms during
the Cold War,”19 the subtler role of the Caribbean in contemporary politics and conflict is no less impactful. For nearly a half century, the Caribbean Basin “has also been viewed as strategic by non-state drug actors…not in terms of geopolitics, but geonarcotics.”20 The very concept of geonarcotics, the internationalized non-state distribution of illicit drugs and precursor chemicals, was made possible largely by the Caribbean’s distinct geographical identity as a cluster of small and comparatively weak, resource-poor nations at the world’s crossroads.
The drug trade is, at its roots, a business venture. It grew in size to meet the scale of demand emanating from the West, most heavily the United States. As post-War disposable income met baby boomer adolescence, the United States became an increasingly lucrative market for narcotics. Through the early 1970s, a growing
percentage of American-smoked marijuana originated in Colombia’s Guajira Peninsula, an isolated jetty thrust into the southern Caribbean Sea.21 As the decade progressed, so too did the American palate. By the end of the 1970s, “U.S. consumption patterns were increasingly moving to cocaine,” and Colombia followed suit.22 By 1979, Colombia had already begun to structure its control over the flow of cocaine. At the time, the majority of coca cultivation remained in Peru and Bolivia, but processing and trafficking were increasingly centered on Colombia,23 with its access to both Caribbean and Pacific littorals. As cultivation was consolidated in Colombia, the country concurrently gave rise to the most infamous (and romanticized) personalities in drug lore. Reminiscent of the public fascination with Chicago’s mobsters or New York’s Mafioso, the 1980s witnessed the prominence of men like Pablo Escobar Gaviria, “whose tales updated the popular image of the drug kingpin and earned their subject something close to a cult following.”24 At the helm of the Medellin Cartel,* Escobar rose to become one of the wealthiest
criminals in history. Yet, Escobar’s larger than life, self-styled Robin Hood persona belied a series of global shifts that would inevitably dislodge Colombia’s organized crime networks from the pinnacle of the drug trade. Escobar was killed in 1993. His death provided a brief moment of opportunity for the rival Cali Cartel, “but they too came down in short order.”25 Colombia would continue to remain the major global source for cocaine, but the “balance of power shifted.”26 At the heart of this shift was geography, or better yet, geonarcotics.
The closer cocaine (or any drug) comes to an American consumer, the greater its value becomes. For this reason, many drug smuggling operations in the Western
Hemisphere set their sights on the United States. And they have been unreservedly successful, though the tactics they employ have varied considerably over the decades. By the end of the 1970s, “entire fleets of speedboats lining up to offload drugs from mother ships were the norm.”27 Fishing boats and coastal freighters served as inconspicuous hubs from which so-called go-fast boats could on- or offload cargo stashed in coves and safe houses.28 Yet, the free-for-all elicited a considerable American response. By 1982, the
* We use the word ‘cartel’ in its vernacular connotation as a euphemism for criminal groups. In fact, transnational criminal organizations do not always fit the economic definition of a cartel (collaborating to fix prices), which explains much of the street violence across the Caribbean Basin. (See, Patrick Radden Keefe, “Cocaine Incorporated,” New York Times, June 15, 2012,
http://www.nytimes.com/2012/06/17/magazine/how-a-mexican-drug-cartel-makes-its-
billions.html?pagewanted=all&_r=2&.) In other Caribbean states, alternative names are used to convey the same concept. In Trinidad and Tobago and the Dominican Republic, the word mafia is common, while in Jamaica the word posse is used for the same purpose.
Framing Littoral Maritime Security Through the Lens of the Broken Windows Theory South Florida Task Group had forced traffickers to transition from mother ships to aircraft, dropping payloads for elusive speedboats to collect and conceal.29 As cocaine distribution continued to grow in complexity and competency in the 1980s, American law enforcement presence similarly continued to build.30 In an effort to evade the tightening grip, traffickers in the late 1980s transitioned away from shuttling narcotics between the Bahamas and South Florida (the preferred avenue at the time) and increasingly turned to the nexus of Puerto Rico and the Lesser Antilles.31 Yet, American law enforcement was determined to close the Caribbean corridor. Radar placements in the Mona passage (between Puerto Rico and the Dominican Republic) and Anegada passage (between the British Virgin Islands and the Lesser Antilles) made the use of aircraft increasingly risky.32 Another blow was dealt in the early 1990s, when the American anti-drug effort went multinational. This was an indirect result of the actions of traffickers, as drug use in the Caribbean began to spread following the practice of offering drugs in lieu of cash payments for distribution services.33 The combination of American enforcement and growing regional opposition to the traffickers brought a decline in the popularity of the Central and Eastern Caribbean Sea smuggling lines, at the time the “lowest cost supply route.”34 Yet, demand for a range of narcotics persisted, and so did the trade. In search of new avenues, the most obvious alternative became crossing the U.S.–Mexico border (the route next in cost efficiency).35
The rise of Mexican cartels was a direct result of Colombian criminal syndicates’ efforts to more effectively deliver their products to market. The transition in power became a matter of fact when Colombian networks began paying Mexican smugglers in cocaine instead of cash. With this shift in compensation, Mexicans became investors and wholesalers instead of merely “logistical middlemen.”36 The American border is the “single most lucrative bottleneck in the drug supply chain, the point where the most value is added,” and the Mexican criminal groups that operated on the border (mostly
smuggling people at the time) “possessed the most enviable situational advantage of all: territorial control of the approaches to the U.S. border.”37 Soon, Mexican cartels had displaced Colombian organizations as the premier movers in the region. As with the Caribbean Sea route, this shift prompted heightened enforcement efforts on the United States’ southern border. The American government began to emphasize efforts against Mexican distribution schemes, notably “the Arellano Felix organization in Tijuana, the Carillo-Fuentes organization in Juarez, and Cardenas Guillen in Tamaulipas and Nuevo Leon.”38 The increased presence once again highlighted the flexibility of the drug trade. This cat-and-mouse game is commonly referred to as the balloon effect, when
enforcement efforts in one region or domain simply open enforcement gaps in another. This effect was on full display in 1993, when President Clinton’s anti-drug directive produced a considerable shift in trafficking routes through the transit zone, but
precipitated no accompanying shift in drug use or sales.39 Before the directive, as much as eighty percent of cocaine shipments had entered the United States through Mexico. After, as much as eighty percent of American-bound cocaine was once again delivered via the Caribbean Sea.40
Today, the Caribbean remains a vital link in the distribution of narcotics. In fact, despite the decline in public fascination, this century’s kingpins, like the recently captured Chapo Guzman, sell “more drugs today than Escobar did at the height of his career.”41 Part of the reason for the persistence of the Caribbean smuggling route is the
exponential increase in sale price of cocaine as it approaches American consumers. The Sinaloa cartel, for example, the cartel Guzman headed and the largest in Mexico,
Can buy a kilo of cocaine in the highlands of Colombia or Peru for around $2,000, then watch it accrue value as it makes its way to market. In
Mexico, that kilo fetches more than $10,000. Jump the border to the United States, and it could sell wholesale for $30,000. Break it down into grams to distribute retail, and that same kilo sells for upwards of
$100,000—more than its weight in gold.42
While the figures vary, the principle holds true whether that kilo flows through the U.S.- Mexico border in a false panel on a truck or a hollowed-out fuel tank on a fishing trawler heading for Miami. These combined efforts support a multibillion-dollar industry as lucrative and logistically complex as any licit global enterprise. The proceeds, however, are notoriously difficult to assess.
The U.S. Department of Justice places the revenue from American sales of cocaine for Colombian and Mexican networks between the wide range of eighteen and thirty-nine billion dollars annually—figures The New York Times rejects out of “a spirit of empirical humility.”43 The RAND Corporation provides a significantly reduced assessment, hypothesizing that Mexican cartels see revenue closer to $6.6 billion.44 Even with more conservative figures from RAND, the Sinaloa cartel, which controls between forty and sixty percent of the cocaine market, would net approximately $3 billion annually.45 By way of comparison, that is equivalent to the gross revenue of major corporations such as Netflix or Facebook.46 General John Kelly, Commander of U.S. Southern Command, told the House Armed Services Committee that his estimates place revenue closer to eighty-four billion dollars annually, though his figures include the distribution of cocaine worldwide.47 Kingpins like Chapo oversee organizations as
sophisticated as any multinational, “doubly sophisticated…because traffickers must move both their product and their profits in secret, and constantly maneuver to avoid death or arrest.”48 In fact, the Sinaloa Cartel “might be the most successful criminal enterprise in history.”49
Whatever the speculated revenue of drug trafficking, one thing is fairly certain—it is highly unlikely that any licit Caribbean endeavor could compete in size, influence, and presence. Today, ninety-seven percent of analyzed U.S.-bound drugs emanate from one country, Colombia,50 much of which passes along Caribbean routes. And the trade is crushing local governments. The United Nations Drug Control Program estimates total regional earnings for the illicit drug industry at almost half the GDP of Jamaica or Trinidad.51 Suriname, a small South American nation on the southern tier of the
Caribbean Basin, has been entirely subsumed as a transshipment point for drug running; “no other economic activity in Suriname can compete in profits.”52 The same is true for many of the small island nations and littoral states dotting the Basin. And yet, despite the apparent efficiency with which illicit markets distribute their products, there is a great deal of experimentation and controlled chaos in the flow of narcotics across the
Caribbean. Organized networks succeed in their endeavors by disorganizing, fracturing and federalizing responsibilities within a broader shared infrastructure. The Sinaloa cartel, for example, is occasionally referred to as the Federation because of its
Framing Littoral Maritime Security Through the Lens of the Broken Windows Theory semiautonomous structure.53 This structure isolates risk and produces more responsive operational models. It also makes it even more difficult than in the past to identify basic information, such as the size of an organization. Author Malcolm Beith speculates that Chapo had as many as 150,000 employees at any given time.54 Professor John Bailey, on the other hand, projects the number may be as low as 150.55 Part of the discrepancy stems from the varied characterization of salaried employees and contractors, a distinction with considerable implications for our conceptualization of what it means to be an organized criminal network. Narcotics trafficking is highly adaptive and creative. Combined with immense capital resources and strong demand in the United States, this creativity engenders myriad routes, tactics, and modes of transportation.