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How the Legal Limbo of Psychoactive Plants Violates Human Rights

An interview with Constanza Sánchez Avilés and Natalia Rebollo (ICEERS). Conducted and edited by Marlies van Exter.

ayahuasca beign served

Psychoactive plants, such as ayahuasca, iboga, and coca leaf, have been used in indigenous and traditional societies since time immemorial. However, in many countries, they exist in a legal limbo; they’re not explicitly prohibited, but their use is not regulated either. This means that plant medicine often gets measured by the same standards as illegal ‘drugs’ - exposing people who use them traditionally to legal uncertainty. This complexity raises some significant questions. How can we address the traditional use of psychoactive plants outside the context in which they are historically used? And, how can people continue to enjoy their cultural practices, a fundamental human right, even though they live in a country where these plants are prohibited or criminalized?

The International Center for Ethnobotanical Education, Research, and Service (ICEERS) is an organization dedicated to the research, education, destigmatization, and implementation of a human rights-based response around plant medicines. For the last several years, the organization has been fighting for the legal rights of people prosecuted for possessing or importing psychoactive plants for ceremonial use. They provide support in trials by testifying as expert witnesses and creating defense strategies based on human rights and scientific proof of the therapeutic benefits of plant medicine.

Globalization of traditional plants

Constanza Sánchez Avilés is ICEERS’s Law, Policy & Human Rights Director. She is a political scientist and holds a PhD in International Law and International Relations. Her main areas of work and research are national and international drug control policies and the intersection between drug control, human rights, and social justice. Constanza explains the challenges that arise from the globalization of traditional plants: “The main challenge is that the use of these psychoactive substances has globalized and therefore arrived in countries where they are framed in a prohibition framework. This means they are extracted from the context in which they are traditionally used and placed together with other criminalized substances. The main consequence is that people who use them for healing and self-empowerment or who offer plant medicine ceremonies face the possibility of criminal prosecution.”

photo of constanza
Constanza Sánchez Avilés

Drug control is social control

“At the end of the day, international drug control and prohibition are very much based on the substances themselves,” Constanza continues. “So it ‘s okay to have my coffee, cigarette, alcohol, or whatever. But for Indigenous Peoples, African-Americans, or other traditional people who migrate, it’s not okay to have the plants that are part of their culture.”

Constanza says that prosecution of ethical and responsible practices is unjust and goes against human rights. “Drug control is a powerful tool for social control. But no one should be criminalized for using any substance. Everyone has the right to acquire the highest attainable standard of physical and mental health.” Launch of Ayahuasca Defense Fund

In 2016, ICEERS saw a worldwide increase in the criminalization of ayahuasca and other psychoactive plants. In response, they launched the Ayahuasca Defense Fund (ADF). This program works towards a world where ayahuasca and other traditional plants can be used legally and safely, supported by a sensible, human-rights-based public policy. The ADF applies their legal, scientific, social and political expertise to this end and has become a helpful expert resource for legal clarity and protection.

Prohibiting plants is prohibiting culture

Natalia Rebollo is the coordinator of the ADF. She is a lawyer specialized in International Human Rights Law, holds a Master’s Degree in Human Rights and Humanitarian Action and has studied Traditional Medicine with different Indigenous communities in Mexico. Natalia emphasizes Constanza's words about how the prosecution of ethical and responsible practices is unjust and goes against human rights. “By prohibiting these plants, you also prohibit culture,” she claims. According to Natalia, law enforcement authorities, particularly in European countries, are becoming more aware of people traveling from Latin America into Europe with these plants or concoctions nowadays and of people receiving packages. “But there's a lot of ignorance. In many cases, authorities don't know what to do with it. Automatically, the prohibitionist views dominate. This means that they assume that the plant is a scheduled substance without even knowing or asking. It tells a lot about how law enforcement authorities think about substances. But at the ADF, we argue that if a country has not explicitly included the name of ayahuasca in their drug laws, it's not a controlled substance.”

Inspiring jurisdictions and change policies

Besides legal and moral support, ADF also functions as an intelligence hub of precedents, evidence, legal arguments, human rights perspectives, etc. Natalia: “We share with judges what other judges have decided about these plants in their courts. This has helped a lot. For instance, in Spain, we can see that our work has inspired other jurisdictions to take the same track. I'm really impressed with what the ADF and ICEERS have done in this sense.” Constanza endorses this: “It depends on the case and the court, but we are somehow managing to introduce the idea that people traveling or relating with traditional plants are different from the typical drug trafficking cases they are used to dealing with, at least in Spain.” The next step would be to convince policymakers to change their policies. Because, in the end, they are the ones who decide upon this, not judges. Constanza: “Perhaps, over time, if we have a fair amount of court decisions concluded rightfully, it’ll be easier to convince policymakers to change their policies. At the same time, it will be difficult to change the system because of the embedded cultural way of framing substances.”

photo of natalia
Natalia Rebollo

Coca leaf cases

Natalia and Constanza explain how they can see this clearly with the coca leaf cases they’ve worked on. This psychoactive plant is common in Colombia, Peru and Bolivia - just as common as drinking coffee. So when people travel to their country of origin and come back to Europe with some coca leaf (usually in powdered form), the consequences can be drastic for them. Constanza: “But for these individuals from Andean cultures, it’s part of their social process, to come together and to share experiences. Coca leaf or mambe is an important gift to bring to your family and friends.” Natalia: “It’s difficult for judges to understand these cultural differences and go beyond applying a law that makes no sense.”

Commodification of traditional plants

About psychoactive plants crossing borders and arriving in Western societies, Constanza says: “I think it’s something positive because plant medicine can offer solutions to the big “evils” of our times, like loneliness or depression, anxiety, and the lack of connection with our communities. And, people from diverse economic classes, gender, ages, etc. have experiences with the rituals and learn about new ways of relating with plants.” “But we come from a world that, in general, is very embedded with the ideas of neoliberalism and capitalism,” she continues. “So, when a plant comes from the dark into the light of legality, capitalism comes and does its work. It’s common to hear about the commodification of traditional plants. Sometimes it's the inertia we have in our society that we tend to commoditize everything. But when you don’t consider the knowledge that comes with the traditional plant, you’re just left with a molecule.” Natalia adds: “To effectively integrate these traditional practices, we have to take care not to repeat the same mistakes that brought us here. It has to do with education and the protection of ancestral knowledge. Think of reciprocity, for example. What does that look like? How can we give back what we receive from these plants?”

Less western-centered

“I just hope that whenever these substances become legal and free to use, that we’re conscious of the impact that this might have on nature,” Natalia continues. “That we have good plans for biocultural conservation. That we protect the Amazon region for ayahuasca and other plants, the desert of Wirikuta for peyote, and that we work on the conservation of all the mushrooms that we've already lost - because there was no conservation at all. And that we conserve the knowledge that we lost because of colonization and the prohibition of these plants. Because besides being an anti-prohibitionist, I'm also a bio-conservationist.” Constanza nods and concludes, saying: “When we talk about a human-rights-based drug policy, we also talk about cultural and environmental rights. We can look at this topic in many ways, but surely it should be more diverse and less western-centered.”

Are you curious to know more about Constanza’s and Natalia’s work at ICEERS and the Ayahuasca Defense Fund? Check out their website! This program runs entirely on donations from the community, you can support it here. More information can be found on:

About the author: Marlies van Exter is a Dutch writer, storyteller, and communications consultant who loves to explore and inspire. She is one of WOOP's regular writers. Through her work, she wants to contribute to a world where everyone understands, respects and builds on their different perspectives. She believes that by digging deeper and going beyond cultural conditioning, it’s possible to create real connections and a better world. Marlies has always had an insatiable curiosity and eagerness to get the most out of life. In psychedelics, she found a travel companion for this and a guide to know herself on a deeper level. Want to know more about Marlies’ work? Check out her website Magpie Communications.

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