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III. Obligations Arising from the Human Rights of Particular Groups

4.3 Rights to enjoy culture and to profess and practise religion

Indigenous peoples have the right to practise and revitalise their cultural traditions and customs and to manifest, practise, develop, and teach their spiritual and religious traditions, customs, and ceremonies. This includes the right to use and cultivate plants and plant-based substances that have psychoactive effects, where these are part of their cultural, spiritual, or religious practices.
Indigenous peoples have the right to maintain, control, cultivate, use, and protect and conserve medicinal and other plants and seeds that form a part of their cultural or ethnic identity or part of their spiritual or religious traditions, customs, and ceremonies. This includes plants that have psychoactive effects.

In accordance with these rights, States should:

i. Refrain from interfering with indigenous peoples’ exercise of their cultural, spiritual, and religious practices, including those involving plants that have psychoactive effects.

ii. Adopt appropriate legislative, administrative, and other measures to ensure that drug control efforts do not interfere with indigenous peoples’ rights to enjoy their culture and to practise their religion, including with members separated by international borders.

iii. Take measures to protect indigenous communities from actions by private companies and third parties that deny indigenous people their traditional sources of nutrition, medicines, livelihoods, and ceremonies, including those involving plants that have psychoactive effects.

In addition, States should:

iv. Consider exemptions within drug legislation allowing indigenous peoples to use controlled psychoactive substances for traditional, cultural, and religious purposes.

Commentary:

The right of everyone to take part in cultural life is enshrined in numerous international instruments.[825] The Human Rights Committee has concluded that a member of a minority shall not be denied the right to enjoy their culture and that measures whose impact amounts to a denial of this right are incompatible with obligations to ensure the right to enjoy one’s own culture.[826] Other international and regional instruments further protect the right to manifest a religion or belief,[827] specifically providing for the protection of the rights of ethnic, religious, and linguistic minorities, in community with other members of their group, to profess and practise their religion.[828] The International Labour Organization’s Indigenous and Tribal Peoples Convention similarly requires States to protect ‘the social, cultural, religious and spiritual values and practices’ of indigenous peoples and the integrity of these practices.[829] The Declaration on the Rights of Indigenous Peoples further recognises indigenous peoples’ rights to their traditional medicines and to maintain their health practices, including the conservation of their vital medicinal plants,[830] and the right to ‘maintain and develop contacts, relations and cooperation, including activities for spiritual, cultural, political, economic and social purposes, with their own members as well as other peoples across borders’.[831]

The Working Group on Arbitrary Detention has recommended that States ‘[p]rotect the rights of indigenous peoples to produce crops and plants that they have traditionally grown for their religious, medicinal and customary purposes and ensure that such production is not criminalized’.[832] The Working Group also recommends that States refrain from taking ‘punitive action against subsistence and small-scale farmers who produce illicit crops’ and instead ‘work with them to develop income from alternative agricultural crops and increase government services in their communities’.[833]

According to the Committee on Economic, Social and Cultural Rights, indigenous peoples ‘have the right to act collectively to ensure respect for their right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines’.[834] The Declaration on the Rights of Indigenous Peoples includes similar protections.[835] The Committee on Economic, Social and Cultural Rights has expressed general concern about the lack of adequate protection for and information on the intellectual property rights and cultural heritage rights of indigenous peoples and recommends that State legislation include clear, precise norms for the effective protection of such rights.[836] It further recommends that States take measures to prevent third parties from interfering in the exercise of these rights, including by preventing the appropriation and commodification of indigenous knowledge and traditional medicine.[837]

Prohibitions on the production of certain plants, such as coca and opium poppy, should not deprive indigenous peoples of the right to cultivate and use plants subject to international control if they are essential elements that contribute to their rights to enjoy their traditional culture and to profess and practise their religion, and therefore also to the general health and well-being of their communities.[838] The right of indigenous people to cultivate and use coca as a manifestation of their cultural identity has been recognised in national constitutions,[839] legislation,[840] and jurisprudence. For example, Colombia’s Constitutional Court has recognised the rights of indigenous peoples to cultivate and use coca for traditional practices, as required by the country’s international law commitments.[841] Notwithstanding the above, most States that have such legal protections also criminalise the possession and cultivation of coca for personal use.[842]

Even when certain substances are not under international control, indigenous people have faced criminal sanctions. For example, despite the statutory exemption from the prohibition on consuming peyote in religious ceremonies in the United States since 1994,[843] the UN Special Rapporteur on the rights of indigenous peoples in 2012 referred to allegations by the Native American Church of North America that peyote users and harvesters were facing ‘wrongful arrest, confiscation, prejudicial treatment in family custody cases, and discrimination in employment’.[844]

Relationship to the UN drug control conventions

Certain provisions of the drug control conventions may conflict with specific rights of indigenous peoples to enjoy their culture and to profess and practise their religion. For example, 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,[845] and establishes the general obligation to limit the permissible use of controlled substances strictly to medical and scientific purposes.[846] However, it also makes this general obligation ‘subject to the provisions of this Convention’,[847] which therefore at least permits flexibility to avoid criminalising indigenous individuals for their possession, purchase, or cultivation for personal consumption, 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,[848] which requires States to destroy coca bushes, opium poppies, and cannabis plants ‘if illegally cultivated’.[849] There is, therefore, an apparent conflict between contemporary indigenous rights standards and the UN drug control conventions that requires close attention.

The United Nations Permanent Forum on Indigenous Issues has called for the amendment or repeal of those portions of the 1961 Single Convention on Narcotic Drugs regarding coca leaf chewing that are inconsistent with the rights of indigenous peoples to maintain their traditional health and cultural practices.[850] Bolivia withdrew from and then re-acceded to the treaty with a reservation protecting the country’s right to permit traditional coca leaf chewing, the consumption and use of coca leaf for cultural and medicinal purposes, and the cultivation, trade, and possession of coca to the extent necessary for these uses.[851]

  • 825. ^

    Universal Declaration of Human Rights, G.A. Res. 217A (III) (1948), art. 27; International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 27; International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI) (1966), art. 15(b); International Convention on the Elimination of All Forms of Racial Discrimination, G.A. Res. 2106A (XX) (1965), art. 5(e)(vi); Convention on the Elimination of All Forms of Discrimination against Women, G.A. Res. 34/180 (1979), art. 13(c); Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 31(2); International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, G.A. Res. 45/158 (1990), art. 43(1)(g); Convention on the Rights of Persons with Disabilities, G.A. Res. 61/106 (2006), art. 30(1); UN General Assembly, Resolution 61/295: United Nations Declaration on the Rights of Indigenous Peoples, UN Doc. A/RES/61/295 (2007), art. 31; International Labour Organization, Indigenous and Tribal Peoples Convention, C169 (1989), art. 4; see also Committee on the Elimination of Racial Discrimination, General Recommendation No. 23: Indigenous Peoples, UN Doc. A/52/18, annex V (1997), paras. 4–5.

  • 826. ^

    Human Rights Committee, Communication No. 671/1995: Jouni E. Länsman et al. v. Finland, UN Doc. CCPR/C/58/D/671/1995 (1996).

  • 827. ^

    International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 18(1); Universal Declaration of Human Rights, G.A. Res. 217A (III) (1948), art. 18; [European] Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5 (1950), art. 9; American Convention on Human Rights, O.A.S. Treaty Series No. 36 (1969), art. 12; African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1981), art. 8; Arab Charter on Human Rights (2004), arts. 25, 30.

  • 828. ^

    See, e.g., Human Rights Committee, General Comment No. 22: Freedom of Thought, Conscience or Religion, UN Doc. CCPR/C/21/Rev.1/Add.4 (1993), para. 8.

  • 829. ^

    International Labour Organization, Indigenous and Tribal Peoples Convention, C169 (1989), art. 5(a, b); 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. 11–13.

  • 830. ^

    UN General Assembly, Resolution 61/295: United Nations Declaration on the Rights of Indigenous Peoples, UN Doc. A/RES/61/295 (2007), art. 24.

  • 831. ^

    UN General Assembly, Resolution 61/295: United Nations Declaration on the Rights of Indigenous Peoples, UN Doc. A/RES/61/295 (2007), art. 36(1).

  • 832. ^

    Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 126(m).

  • 833. ^

    Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 126(m).

  • 834. ^

    Committee on Economic, Social and Cultural Rights, General Comment No. 21: Right of Everyone to Take Part in Cultural Life, UN Doc. E/C.12/GC/21 (2009), para. 37.

  • 835. ^

    UN General Assembly, Resolution 61/295: United Nations Declaration on the Rights of Indigenous Peoples, UN Doc. A/RES/61/295 (2007), art. 31.

  • 836. ^

    Committee on Economic, Social and Cultural Rights, Concluding Observations: Russia, UN Doc. E/C.12/RUS/CO/5 (2011), para. 34.

  • 837. ^

    Committee on Economic, Social and Cultural Rights, General Comment No. 21: Right of Everyone to Take Part in Cultural Life, UN Doc. E/C.12/GC/21 (2009), para. 50; see also Right to Health and Indigenous Peoples with a Focus on Children and Youth: Study by the Expert Mechanism on the Rights of Indigenous Peoples, UN Doc. A/HRC/33/57 (2016), para. 33; Convention on Biological Diversity (1992), art. 8(j).

  • 838. ^

    Permanent Forum on Indigenous Issues: Report on the Eighth Session, UN Doc. E/2009/43-E/C.19/2009/14 (2009), para. 89.

  • 839. ^

    Constitution of Bolivia (2009), arts. 30(II)(2), 384; Constitution of Ecuador (2008), art. 57; Constitution of Peru (1993), art. 89; Constitution of Venezuela (1999), art. 121; Constitution of Argentina (1994), art. 75(17).

  • 840. ^

    Chile, Law No. 19253 (1993), art. 7.

  • 841. ^

    Sentencia T-080/2017, Corte Constitucional (Colombia), 7 February 2017; Sentencia T-357/2018, Corte Constitucional (Colombia), 31 August 2018, para. 6.

  • 842. ^

    See, e.g., Argentina, Law No. 23737 (1989), art. 15.

  • 843. ^

    See United States, American Indian Religious Freedom Act Amendments of 1994; Report of the UN High Commissioner for Human Rights: Study on the Impact of the World Drug Problem on the Enjoyment of Human Rights, UN Doc. A/HRC/30/65 (2015), para. 60.

  • 844. ^

    Report of the Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, Addendum: The Situation of Indigenous Peoples in the United States of America, UN Doc. A/HRC/21/47/Add.1 (2012), appendix II, para. 101.

  • 845. ^

    Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 49(2)(d–g).

  • 846. ^

    Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 4(c).

  • 847. ^

    Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 4(c).

  • 848. ^

    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).

  • 849. ^

    Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), arts. 22(2), 26(2).

  • 850. ^

    Permanent Forum on Indigenous Issues: Report on the Eighth Session, UN Doc. E/2009/43-E/C.19/2009/14 (2009), para. 89.

  • 851. ^

    The reservation reads as follows: ‘The Plurinational State of Bolivia reserves the right to allow in its territory: traditional coca leaf chewing; the consumption and use of the coca leaf in its natural state for cultural and medicinal purposes, such as its use in infusions; and also, the cultivation, trade and possession of the coca leaf to the extent necessary for these licit purposes. At the same time, the Plurinational State of Bolivia will continue to take all necessary measures to control the cultivation of coca in order to prevent its abuse and the illicit production of the narcotic drugs which may be extracted from the leaf’. See United Nations Treaty Collection, ‘Declarations and Reservations: Bolivia’, https://treaties.un.org/Pages/Declarations.aspx?index=Bolivia%20(Plurinational%20State%20of)&lang=_en&chapter=6&treaty=170.

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