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III. Obligations Arising from the Human Rights of Particular Groups

4.1 Rights to self-determination; to lands, territories, and resources; and to conservation of lands

Indigenous peoples have the rights to self-determination and to freely pursue their economic, social, and cultural development. They also have the right to own, use, develop, and control the lands, territories, and resources that they have traditionally owned, occupied, or otherwise acquired. Indigenous peoples have the right to conserve their lands and protect them from harm caused by drug control measures.

In accordance with these rights, States should:

i. Ensure that drug control measures do not deprive indigenous peoples of their right to self-determination or their right to subsistence.

ii. Ensure that drug control measures recognise, respect, and protect the rights of indigenous peoples to own, use, develop, and control their lands, territories, and resources.

iii. Ensure that drug control measures do not negatively affect the right to conservation or productive capacity of indigenous peoples’ lands.

iv. Take effective measures to prevent and redress harms to the environment and productive capacity of indigenous territories and resources caused by drug control measures.

v. Require comprehensive environmental impact assessments to be carried out with the participation of relevant indigenous peoples in order to assess the environmental, economic, social, cultural, and spiritual impacts of drug control activities prior to their commencement and to determine the extent to which these activities can be modified.

vi. Monitor the implementation of such drug control activities and modifications.

vii. In the event of harm resulting from drug control measures, develop and implement adequate and effective remediation measures in consultation with affected populations.

Commentary:

The right to both political and economic self-determination, by virtue of which all peoples have the right to freely determine their political status and freely pursue their economic, social, and cultural development, is guaranteed in a number of international and regional human rights instruments.[805] The relevant provisions of the International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights make clear that ‘[i]n no case may a people be deprived of their means of subsistence’.[806] The United Nations Declaration on the Rights of Indigenous Peoples likewise prohibits States from depriving indigenous peoples of their means of subsistence[807] and requires States to ensure the protection of the environment and the productive capacities of indigenous peoples’ territories.[808]

The Committee on Economic, Social and Cultural Rights has acknowledged that ‘the strong communal dimension of indigenous peoples’ cultural life is indispensable to their existence, well-being and development, and this includes the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise acquired’.[809] The Committee advises States to respect and protect indigenous peoples’ cultural values and rights associated with their relationship with nature in order to prevent the degradation of their particular way of life (including their means of subsistence), the loss of their natural resources, and, ultimately, the loss of their cultural identity.[810] The Declaration on the Rights of Indigenous Peoples affirms the right of indigenous peoples to be secure in the enjoyment of their own means of subsistence and development and to just and fair redress where they are deprived of these means.[811]

Efforts to eradicate illicit drug crops, such as aerial fumigation, have negatively affected indigenous peoples’ rights to subsistence, health, and livelihood. Indigenous peoples and indigenous organisations report that such spraying has destroyed subsistence crops; damaged soil quality and yields; harmed fauna, flora, and water; affected indigenous communities’ economic activities and access to adequate food; and, in turn, caused their involuntary displacement.[812] UN human rights mechanisms have raised particular concerns about the adverse effects that aerial spraying of glyphosate to eradicate coca crops has on indigenous adults’ and children’s environment, economic activities, access to food, health, social life, and culture.[813] In this light, the Committee on the Rights of the Child recommends that States carry out independent, rights-based environmental and social impact assessments of aerial fumigation of illicit drug crops, ensure the prior consultation of affected indigenous communities, and take all precautions to avoid harmful impacts on the health of indigenous children in particular.[814]

Relationship to the UN drug control conventions

The 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances requires that each State Party take ‘appropriate measures to prevent illicit cultivation of and to eradicate plants containing narcotic or psychotropic substances, such as opium poppy, coca bush and cannabis plants, cultivated illicitly in its territory’.[815] However, in order for such prevention and eradication to be ‘appropriate’, it must respect ‘fundamental human rights’ and take ‘full account of traditional licit uses, where there is historic evidence of such use, as well as the protection of the environment’.[816] Article 14 of the 1988 Convention thus recognises the traditional use of certain plants, including the coca bush. However, it also stipulates that measures shall not be less stringent than the obligations of the 1961 Single Convention on Narcotic Drugs,[817] which require States to destroy coca bushes, opium poppies, and cannabis plants ‘if illegally cultivated’.[818] This norm creates potential tensions with human rights requirements to protect indigenous peoples’ rights to subsistence and to own, use, develop, control, and conserve lands, territories, and resources that they have traditionally owned, occupied, or otherwise acquired.

  • 805. ^

    International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 1, International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI) (1966), art. 1; UN General Assembly, Resolution 61/295: United Nations Declaration on the Rights of Indigenous Peoples, UN Doc. A/RES/61/295 (2007), art. 3; see also African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1981), art. 20.

  • 806. ^

    International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 1(2); International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI) (1966), art. 1(2).

  • 807. ^

    UN General Assembly, Resolution 61/295: United Nations Declaration on the Rights of Indigenous Peoples, UN Doc. A/RES/61/295 (2007), art. 20.

  • 808. ^

    UN General Assembly, Resolution 61/295: United Nations Declaration on the Rights of Indigenous Peoples, UN Doc. A/RES/61/295 (2007), art. 29.

  • 809. ^

    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. 36; UN General Assembly, Resolution 61/295: United Nations Declaration on the Rights of Indigenous Peoples, UN Doc. A/RES/61/295 (2007), art. 26(a).

  • 810. ^

    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. 36; International Labour Organization, Indigenous and Tribal Peoples Convention, C169 (1989), arts. 13–16; 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. 20, 33.

  • 811. ^

    UN General Assembly, Resolution 61/295: United Nations Declaration on the Rights of Indigenous Peoples, UN Doc. A/RES/61/295 (2007), art. 20.

  • 812. ^

    Report by the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People: Mission to Ecuador, UN Doc. A/HRC/4/32/Add.2 (2006), para. 30.

  • 813. ^

    Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, Rodolfo Stavenhagen: Mission to Colombia, UN Doc. E/CN.4/2005/88/Add.2 (2004), paras. 50, 52, 82; Report by the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People: Mission to Ecuador, UN Doc. A/HRC/4/32/Add.2 (2006), paras. 28–31; Committee on the Rights of the Child, Concluding Observations: Colombia, UN Doc. CRC/C/COL/CO/3 (2006), para. 72.

  • 814. ^

    Committee on the Rights of the Child, Concluding Observations: Colombia, UN Doc. CRC/C/COL/CO/3 (2006), para. 73.

  • 815. ^

    Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 14(2); see also Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), arts. 22(2), 26(2).

  • 816. ^

    Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 14(2).

  • 817. ^

    Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 14.

  • 818. ^

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

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