Everyone has the right to enjoy cultural life. This right applies equally to all without discrimination, including people who use drugs recreationally, people who use drugs for cultural, spiritual, or religious purposes, people who need controlled substances for medical purposes, and people who cultivate illicit drug crops as a traditional way of life.
In accordance with this right, States should:
i. Refrain from discriminatory and otherwise unnecessary or disproportionate interference with the exercise of cultural practices and with access to cultural goods and services on grounds of drug control law and policy.
ii. Take necessary measures to ensure the preconditions for participation in, facilitation of, and promotion of cultural life without discrimination, including access to and preservation of cultural goods where these involve controlled plants and substances.
iii. Foster a rich and diverse cultural life through the conservation, development, and diffusion of culture and by ensuring the participation of relevant communities in the governance of cultural heritage, including where these involve controlled plants and substances.
The right of everyone to take part in cultural life is enshrined in numerous international and regional human rights instruments.[564] It is a right that has both individual and collective dimensions[565] and entails both negative and positive State obligations.[566] The Committee on Economic, Social and Cultural Rights considers that culture encompasses, inter alia, ‘ways of life, language, oral and written literature, music and song, non-verbal communication, religion or belief systems, rites and ceremonies, sport and games, methods of production or technology, natural and man-made environments, food, clothing and shelter and the arts, customs and traditions through which individuals, groups of individuals and communities express their humanity and the meaning they give to their existence, and build their world view representing their encounter with the external forces affecting their lives’.[567] While there is no universal definition of ‘culture’, a range of UN human rights mechanisms have interpreted it to include knowledge of seeds, knowledge of the properties of flora and fauna, agricultural practices, and other economic activities that are relevant to the traditional farming and uses of controlled plants.[568]
The UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage obligates States to ‘take the necessary measures to ensure the safeguarding of the intangible cultural heritage present in its territory’.[569] The Convention, whose objective is to raise awareness of and respect for intangible cultural heritage, establishes the creation of formal lists to promote the safeguarding of intangible cultural practices. To date, these lists recognise the traditional knowledge of shamans, including sacred practices involving coca and peyote.[570] This means that some States may have a competing set of international obligations to both protect and abolish intangible cultural heritage.
Within the framework of safeguarding intangible cultural heritage, States have an obligation ‘to ensure the widest possible participation of communities, groups and, where appropriate, individuals that create, maintain and transmit such heritage, and to involve them actively in its management’.[571] Therefore, to support the safeguarding of certain plants under international control that may also be considered intangible cultural heritage, governance mechanisms led by affected traditional farming communities should be considered.
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.[572] In addition, the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances requires States to criminalise the possession, purchase, and cultivation of coca, opium, and cannabis for personal non-medical consumption and to take measures to prevent the cultivation of, and to eradicate, illicit drug crops.[573] While these provisions may in some cases create tensions with concomitant obligations to respect and protect cultural life, including intangible cultural heritage, States nevertheless also have some scope for harmonisation. For example, in implementing their eradication obligations under the 1988 Convention, States must ‘take due account of traditional licit uses, where there is historic evidence of such use’.[574]
Finally, in contrast to the 1961 Single Convention on Narcotic Drugs, neither the 1971 Convention on Psychotropic Substances nor the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances includes control measures for plants. Only some active stimulant and hallucinogenic ingredients contained in certain plants are controlled under the 1971 Convention. Furthermore, the International Narcotics Control Board has acknowledged that some plants containing psychoactive substances with stimulating or hallucinogenic properties that are scheduled under the 1971 Convention, as well as preparations made from those plants, are not subject to international control.[575]
Universal Declaration of Human Rights, G.A. Res. 217A (III) (1948), art. 27; International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI) (1966), art. 15; International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 27; 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); Committee on the Elimination of Racial Discrimination, General Recommendation No. 23: Indigenous Peoples, UN Doc. A/52/18, annex V (1997), paras. 4–5; 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; Council of Europe, Framework Convention on the Value of Cultural Heritage for Society (Faro Convention) (2005), art. 4(a); Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, O.A.S. Treaty Series No. 69 (1988), art. 14; African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1981), art. 17(2).
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), paras. 7, 9, 37; see also Council of Europe, Framework Convention on the Value of Cultural Heritage for Society (Faro Convention) (2005), art. 4(a); Arab Charter on Human Rights (2004), art. 25.
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), paras. 7–10; see also Council of Europe, Framework Convention on the Value of Cultural Heritage for Society (Faro Convention) (2005), art. 4(a); Arab Charter on Human Rights (2004), art. 25.
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. 13(a).
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; Human Rights Committee, General Comment No. 23: The Rights of Minorities, UN Doc. CCPR/C/21/Rev.1/Add.5 (1994), para. 7; UNESCO, ‘Lists of Intangible Cultural Heritage and the Register of Good Safeguarding Practices’, 2018, https://ich.unesco.org/en/lists; African Commission on Human and Peoples’ Rights, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v. Kenya, Communication No. 276/03 (2009), para. 24; African Commission on Human and Peoples’ Rights, Report of the African Commission’s Working Group of Experts on Indigenous Populations/Communities (2005).
UNESCO, Convention for the Safeguarding of the Intangible Cultural Heritage (2003), art. 11(a).
UNESCO, ‘Lists of Intangible Cultural Heritage and the Register of Good Safeguarding Practices’, 2018, https://ich.unesco.org/en/lists
UNESCO, Convention for the Safeguarding of the Intangible Cultural Heritage (2003), art. 15.
Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 49(2)(d–g).
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 14(2).
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 14(2).
International Narcotics Control Board, Contribution of the International Narcotics Control Board to the High-Level Review of the Implementation by Member States of the Political Declaration and Plan of Action on International Cooperation towards an Integrated and Balanced Strategy to Counter the World Drug Problem (2014), paras. 11, 12.
