Indigenous peoples have the right to their traditional medicines and to maintain their traditional health practices, including those related to their spiritual health. This necessitates the conservation of their vital medicinal plants, some of which have psychoactive properties.
In accordance with these obligations, States should:
i. Refrain from depriving indigenous peoples of the right to cultivate and use psychoactive plants that are essential to the overall health and well-being of their communities.
ii. Repeal, amend, or discontinue laws, policies, and practices that inhibit indigenous peoples’ access to controlled psychoactive substances for the purposes of maintaining or increasing the overall health and well-being of their communities, and consider adopting appropriate legislative, administrative, and other measures to guarantee the exercise of the right to traditional medicines and health practices.
In addition, States may:
iii. Utilise the available flexibilities in the UN drug control conventions to decriminalise indigenous peoples’ possession, purchase, or cultivation of controlled psychoactive substances for personal consumption.
iv. Consider taking specific measures to protect the right of indigenous peoples to use psychoactive substances for specially defined purposes, including those related to their right to health.
The Committee on Economic, Social and Cultural Rights has recommended the protection of vital medicinal plants necessary to the full enjoyment of the right to health of indigenous people.[852] The Committee has further noted that ‘in indigenous communities, the health of the individual is often linked to the health of the society as a whole and has a collective dimension’.[853] The Committee therefore also ‘considers that development-related activities that lead to the displacement of indigenous peoples against their will from their traditional territories and environment, denying them their sources of nutrition and breaking their symbiotic relationship with their lands, has a deleterious effect on their health’.[854]
Relationship to the UN drug control conventions
The 1961 Single Convention on Narcotic Drugs requires that States abolish a range of traditional practices, including traditional uses of coca leaves, the quasi-medical use of opium, and traditional and religious uses of cannabis.[855] It further establishes the general obligation to limit the permissible use of controlled substances strictly to medical and scientific purposes.[856] However, it also makes this general obligation ‘subject to the provisions of this Convention’,[857] which therefore at least permits flexibility to avoid criminalising indigenous individuals for their possession, purchase, or cultivation for personal consumption related to medicinal purposes, although it also leaves other activities involving the use of substances for traditional purposes subject to criminal sanction.
The 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances does allow for ‘traditional licit uses’. However, it also states that any measures taken by States in relation to such substances may not be ‘less stringent’ than required under the 1961 Single Convention,[858] which requires States to destroy coca bushes, opium poppies, and cannabis plants ‘if illegally cultivated’.[859] There is, therefore, an apparent conflict between contemporary indigenous rights standards and the UN drug control conventions that requires close attention.
Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 49(2)(d–g).
Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000), para. 27; see also UN General Assembly, Resolution 61/295: United Nations Declaration on the Rights of Indigenous Peoples, UN Doc. A/RES/61/295 (2007), art. 24(1).
Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000), para. 27; see also UN General Assembly, Resolution 61/295: United Nations Declaration on the Rights of Indigenous Peoples, UN Doc. A/RES/61/295 (2007), arts. 1, 24(1).
Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000), para. 27; see also UN General Assembly, Resolution 61/295: United Nations Declaration on the Rights of Indigenous Peoples, UN Doc. A/RES/61/295 (2007), arts. 23, 24(1).
Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 4(c).
Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 4(c).
See Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 14(2); Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), arts. 4(c), 49(2).
Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), arts. 22(2), 26(2).
