International legal aspects of the use of Ayahuasca
Copyright: Adele G. Van der Plas, 2002
Conference on Psycho-Activity IIIPRIVATE November 23, 2002 in Amsterdam
My introduction to the world of the entheogenic religions started in December 1993, when Hans Bogers and Geraldine Fijneman of the Dutch Santo Daime churches, visited my office. They asked my legal advice about the possibilities of using a psycho-active drink in a ceremony with a long history of religious use. In the years to come we gathered an increasing amount of information and expert opinions about the religious, health and legal aspects of the use of this beverage, in order to be prepared for an eventual legal process that could knock on the church doors.
When police arrested the leaders of the Amsterdam and The Hague Santo Daime churches, during a religious ceremony in October of 1999, it became clear that the authorities were in no mood to recognize the churches as authentic religious groups, but chose instead to prosecute the church leaders under criminal law.
1. Ayahuasca: not controlled by international conventions
In the criminal procedure against the Santo Daime churches in the Netherlands, the District Attorney delivered an official letter from Mr. Herbert Schaepe, Secretary of the United Nations International Narcotics Control Board. The letter answered some questions from the Dutch Ministry of Public Health about the use of a preparation called 'ayahuasca' by religious groups in the Netherlands. The letter says:
The above-mentioned issue was consulted by the INCB Secretariat with the Scientific Section and the Legal Advisory Section of the United National International Drug Control Programme (UNDCP). It is our understanding that 'ayahuasca' is the common name for a liquid preparation (decoction) for oral use prepared from plants indigenous to the Amazon basin of South America, essentially the stern bank of different species of a jungle vine (Banisteriopsis sp.) and the tryptamine-rich plant Psychotria viridis. According to the scientific literature, ayahuasca commonly contains a number of psychoactive alkaloids, including DMT which is a substance included in Schedule I of the 1971 Convention on Psychotropic Substances.
The letter concludes with the statement:
No plants (natural materials) containing DMT are at present controlled under the 1971 Convention on Psychotropic Substances. Consequently, preparations (e.g. decoctions) made of these plants, including ayahuasca are not under international control and, therefore, not subject to any of the articles of the 1971 Convention.
We were pleasantly surprised - as you will understand - with this contribution by the prosecutor in the procedure. In fact, the letter confirmed that preparations of plants, containing by nature some psychotropics substances, like ayahuasca, are not controlled by the US Convention on Psychotropic Substances. The person who produced this letter was the one who also initiated the prosecution of the church leaders. He accused them of having committed a criminal act by providing ayahuasca to the church members.
Actually, the District Attorney himself was also surprised by this action. When he realized the consequences of what the letter said, he stated in court that Mr. Schaepe must have made a mistake in his letter. However, we know now that Mr. Schaepe was not mistaken at all. The Official Commentary on the Convention on Psychotropic Substances (of 21 February 1971) confirms his view fully. Moreover, it was the Scientific and Legal Advisory Section of the United Nations Drug Control Programme itself that advised Mr. Schaepe on the matter.
2. National drugs legislation
Despite this clear explanation by the Narcotics Control Board, national states like the Netherlands and the United States, for example, seem to have a hard time accepting this point of view. After all, it would imply that the individual states are not compelled by any international treaty to criminalize the use of ayahuasca or, for that matter, Jurema (the tea brewed from the roots of the Mimosa Hostilis).
The Dutch Supreme Court referred, in the past, to the Convention in their interpretation or explanation of the Dutch legislation on psychotropic substances. Since the Court realized that this implied the decriminalization of psilocybe mushroom tea or -cookies, for example, as well as ayahuasca and jurema, it changed its policy on this matter. Better said: changed its mind. In a recent judgment, on November 6, 2002, the Dutch Supreme Court decided that any processing of mushrooms containing psilocybine, including simply drying the plants, turn them into a substance which is prohibited by law. This means that the Dutch Supreme Court chose a far more restrictive drug policy on mushrooms than the International Convention on Psychotropic Substances requires. It also means that processing (even chewing?) any natural substance containing a hallucinogenic renders its possession or delivery illegal. For Dutch law, such processing would make it equal to the pure psychotropic substance which it contains by nature.
The implication is that you can freely eat a fresh psilocybe mushroom in the Netherlands. Smart shops keep them fresh in their refrigerators for you. However, as soon as you buy this mushroom dried or prepared in a cookie, you become punishable. If you sell or deliver this preparation to someone else, you will basically be risking a prison sentence of 8 years. The same applies to using or delivering jurema and ayahuasca. You are allowed to chew the vine of the Banisteriopsis Caapi, even when you combine it with some leaves of the Psychotria Viridis. But don't drink the ayahuasca tea, which is brewed from a mixture of the two plants and served to you by a shaman.
The same goes for the dried or grated nutmeg in your kitchen cabinet. By nature, the nutmeg contains the psychotropic substance MDMA, mentioned on the Schedules of the Convention on Psychotropics Substances and the Dutch drug law. Serving your family a meal prepared with some grated dried nutmeg, in theory, puts you at risk for a prison sentence of 8 years.
3. International respect for Mother Nature
Old magical and religious rites
The authors of the Convention on Psychotropic Substances were warning against those exact consequences. In the United Nations Conference (for the adoption of a protocol on psychotropic substances) the US-delegation said:
that is was not worth attempting to impose controls on biological substances from which psychotropics substances could be obtained (Records 1971, Volume II, p. 38/39).
Psychotropics Substances after all can be found in a large diversity of living organisms, among which mushrooms, cacti, fishes and nuts. Any endeavor to control this would mean the extinction (extermination) and annihilation (destruction) of a currently unpredictable diversity of plants and animals.
The official Commentary on the Convention is crystal-clear on the fact that neither infusions nor the roots of such plants as the Mimosa Hostilis or Psilocybe mushrooms are covered by the Convention The commentary mentioned explicitly:
Neither the crown, fruit, mescal button of the Peyote cactus nor the roots of the plant Mimosa Hostilis nor Psilocybe mushrooms themselves are included in Schedule I, but only their respective active principals Mescaline, DMT and Psilobyne (Psilocine, Psilotsin). (.....). An infusion of the roots of the Mimosa Hostilis is used (.....) and (.....) beverages made from such mushrooms are used (Commentary on the Convention on Psychotropic Substances, Vienna 21 February 1971, Art. 32, Reservations, p. 386).
The fact is that at the time of signing, the Convention offered the individual states a possibility for reservations with regard to plants growing wild on their territory that were traditionally used by certain small, clearly determined groups in magical or religious rites. For example, the US made such reservation for Peyote, harvested and distributed for use by the Native American Church. Canada did the same. Peru, for example, made a reservation for ayahuasca as well as for the cactus known as San Pedro (containing mescaline and used by indigenous medicine men or shamans). The Commentary underlines, however, that such reservations are only made for a distant future, for the possible occasion that infusions like ayahuasca and jurema or cacti like Peyote or San Pedro, or mushroom beverages were ever to be placed on Schedule I of the Convention. In that case, the reservations already in place could give the individual state legislatures the freedom to not criminalize the traditional use of those plants. Peru could then make an official exemption in their drug legislation for the traditional use of for example, ayahuasca. In this respect the official commentary underlines:
It may be pointed out that at the time of this writing (1971) the continued toleration of the use of hallucinogenic substances (.... does not .....) require reservation (.....). Schedule I does not list any of the natural hallucinogenic materials in question, but only chemical substances which constitute the active principals contained in them (ibidem Commentary, p. 387).
Recently, the District Court of New Mexico accepted this interpretation of the Convention in a decision dealing with the request by the Uniao do Vegetal (UDV) to protect their freedom to use ayahuasca in their religious ceremonies. This Court stated:
that it felt appropriate to turn to the Commentary, which makes clear that (.....) the scheduling of a hallucinogenic chemical in the Convention does not imply the scheduling of a plant that contains that chemical (decision of the United States District Court for the district of New Mexico, August 12, 2002, p. 58.
As a consequence the Court of New Mexico decided that the Treaty does not appear to extend to 'Hoasca'.
However, all this leaves the national legislators or jurisprudence with the unimpeded ability to give a more extensive interpretation of the concept of a preparation of a psychotropic substance. I already gave the example of the Dutch Supreme Court's decision that a preparation means every possible treatment of a natural material containing a hallucinogenic. Defining a natural material as a preparation, means that it is seen as the psychotropic substance that it contains by nature. At the same time, the possessor of it becomes liable to punishment. Consequently, even the drying of fresh mushrooms or a fresh nutmeg is defined as a criminal act in the Netherlands.
4. The protection of human rights and fundamental freedoms
The Convention on Psychotropic Substances does not offer a right of complaint for the individual citizen against such national interpretations. In my opinion, there is no possibility for appeal to an international authority regarding the above-mentioned Dutch misinterpretations of the Treaty on Psychotropic substances. The only (pieces of) straw to grasp are the fundamental human rights which are protected in national constitutions and international treaties like the European Convention for the protection of human rights and fundamental freedoms (November 4, 1950) or the United Nations International Covenant on Civil and Political Rights (of December 19, 1966). The Santo Daime churches relied precisely on this European Convention: Art. 9, the protection of the freedom of religion. The churches succeeded, in this way, to legalize their holy sacrament ayahuasca in the Netherlands.
In the United States the Uniao do Vegetal choose the same path to get their use of ayahuasca in their religious ceremonies legalized. The District judge of New Mexico concluded that the Federal government didn't have the right to violate the religious right of the Uniao do Vegetal to use their sacrament, because, among other things, there was no international treaty which compelled the government to do so.
In the criminal procedure of the Dutch Santo Daime church, which took place in Amsterdam, two church leaders were prosecuted for serving Daime to the church members in a religious ceremony in October 1999. The two leaders were imprisoned for 4 days. Only in March of 2001, was the case heard in court after the refusal of the churches to accept an offer by the District Attorney to dismiss it. The amount of DMT found in the confiscated brew was after all only 0.02%. The churches preferred to have a fundamental answer on the defense of their right to enjoy the freedom of religion during their rituals, specifically, the freedom to use ayahuasca during their ceremonies. Dismissal of the case would not mean that the churches could continue their rituals, but only that the two church leaders would not be brought to trial. Art. 9 of the European Convention reads as follows:
1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief in freedom, either alone or in community with others and in public or private, to manifest his religion of belief in worship, teaching practice and observance.
2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety for the protection of public order, health or morals or for the protection of the rights and freedoms of others.
Article 9 of the European Convention is basically similar to Art 18 of the United Nations Treaty on Civil and Political rights.
In its decision of May 21, 2001, the district Court of Amsterdam recognized the fundamental rights of the churches, protected by Art. 9 of the European Convention, to celebrate their religious ceremonies with the holy sacrament ayahuasca. It was the first time that the new Dutch holy cow, the drug law, had to give way to stronger constitutional rights. You can call this a historical victory for the Netherlands. The Court, however would be skating on thin ice by allowing the churches their ceremonial use of ayahuasca, without establishing some further conditions. It was, after all, a psychotropic substance and remains so, in the eyes of the Dutch Supreme Court!
5. The prosecution of the Dutch Santo Daime churches
First of all, the churches could prove that they belong to a serious religious organization. They have been officially registered as church in the Netherlands since 1995. Moreover, they formed part of the officially recognized Brazilian Santo Daime church CEFLURIS, which, from the 90's, has had several international branches in European countries, Japan and the US. Furthermore, a large number of experts, from anthropologists to pharmacologists and psychiatrists, informed the judges as to the historical background of the churches, their ritual use of ayahuasca and the interaction between the use of psycho-active substances in general and in religious conscience.
In Holland, it is not enough just to register an organization as a church to derive the special legal benefits from this status. Several years ago, the Supreme Court refused an appeal for this special status, by an organization called De Zusters van het Klooster Sint Walburga or The Sisters of the Nunnery Sint Walburga. This organization was indistinguishable from a simple sex club in the view of the Supreme Court: neither the paying visitors nor the nuns showed any religious conscience.
Religious conscience does indeed form a necessary condition to be fulfilled before you can successfully rely on the protection of Art. 9 of the European Convention or Art. 18 of the United Nations Treaty on Civil and Political Rights. Our experts gave a very detailed description of the ceremonies of the CEFLURIS church. The Brazilian anthropologist Mac Rae, told the court that:
The hymns of the Church are conceived of as having been received by Mestre Irineu from God and are remarkably similar to the hymns sung in a Catholic Church. They reflect a belief in Jesus Christ as the Savior and speak to all of the traditional Catholic values and social standards. (..........)
(.....), the Santo Daime works" all begin with the Lord's Prayer and the "Hail Mary".
Mac Rae also informed the court that:
In Brazil several important Catholic leaders recognize the Santo Daime church and it has spoken eloquently about its service to environmental and humanitarian issues and is considered a full partner in inter religious organizations and conferences in Brazil.
Those facts formed a solid base for the protection under Art. 9 of the European Convention. The Dutch court couldn't deny the explicit and even traditional religious character of the Santo Daime church.
6. Freedom of religion and psycho-active substances
Once the religious character of the organization has been admitted, the protection under Art. 9 extends to all the acts or ceremonies with which belief is expressed. The government is not allowed to intervene in the means of expressing one's belief. The European Court of Human Rights defined this rather strictly in 1996 (in the judgment Manoussakis versus Greece, § 47). It said:
The right to freedom of religion as guaranteed under the Convention excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate.
Moreover, if the manifestations of someone's belief are not familiar to a certain culture, they must be respected as inherent to the freedom of religion. The CCPR of the United Nations also expressed this clearly, in relation to Art. 18 of the Covenant on Civil and Political Rights (as said the counterpart of Art. 9 ECHR). CCPR said on this matter:
The freedom to manifest religion or belief in worship (.....) encompasses a broad range of acts. The concept of worship extends to ritual and ceremonial acts giving direct expression to belief as well as various practices integral to such acts (......) (it) may include not only ceremonial acts but also such customs as the observance of dietary regulations (...... etc. etc.).
The Committee observes that the concept of morals derives from many social philosophical and religious traditions; consequently, limitations on the freedom to manifest a religion or belief for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition.
Our experts informed the judge as to the historical fact that the use of drugs in a religious setting wasn't unique at all. The use of psycho-active substances like ayahuasca, the Peyote cactus or psilobyne mushrooms in religious rituals is as old as human history, he explained to the court (The historian F.A.M. Snelders in his expert report of November 27, 2000). In our western world however, there reigns a chronic lack of understanding of this historical truth, another expert told the court.
Dr. R. Kranenborg, a scientist of religion at the University of Amsterdam, came to the conclusion that the use of ayahuasca within the ceremonies of the Santo Daime church is essential for the church members' perception or consciousness of God. In other words, drinking the tea was inextricable linked with the worship of the church.
7. Any risk for public health?
When all this is proven, the government will only be able to intervene in someone's freedom to manifest one's religion if the limitations are prescribed by law and if they are necessary in a democratic society in the interest of public safety or the protection of public order, health or morals or the rights and freedom of others.
In the Dutch procedure, the prosecutor stated that the use of ayahuasca was prohibited by Dutch drug law, but he was not able to prove that the use of ayahuasca by the Santo Daime churches implied a danger to public health, order or morals.
Our experts were unanimous in their conclusions that the ritual use of ayahuasca during the worship of the Santo Daime churches didn't cause any danger to public health. Professor Dr. F.A. de Wolff testified in court as an expert both for the defense as for the prosecution. His conclusions on this matter convinced the court. He wrote:
1. Ayahuasca consumption may involve health risks in individual cases;
2. Generally, the information about these risks provided by the Santo Daime church to the participants in their meetings is correct and adequate;
3. The limited availability of ayahuasca and the strictly regulated conditions surrounding the consumption thereof provides protection against abuse on the part of the congregants;
4. In view of point 1-3 as well as the limited scale of the Santo Daime church, it is not plausible, according current scientific thinking, that ayahuasca consumption constitutes a health hazard.
(Conclusions in the report of April 24, 2000 of Prof. F.A. de Wolff, Phd).
Our expert Prof. Dr. Charles D. Kaplan, of the Department of Psychiatry and Neuropsychology of the University of Maastricht drew even stronger conclusions. He reported:
In closing, I would conclude that the use of "Daime" in a ritual context motivated by a search for spiritual and (mental) health provides an acceptable and minimal risk to public health and, in fact, is likely to provide an unseen benefit for our health system.
The experts, again were unanimous in their conclusion that the social setting, in particular, in which the use of ayahuasca took place in the ritual worship of the Santo Daime church, was sufficient to further reduce any possible remaining harmful effect of the use of ayahuasca.
The Amsterdam District Court adopted the opinion of our experts in their final decision on the case. The drinking of ayahuasca within the religious and ritual setting of the Santo Daime churches did not involve any considerable risk for public health, was the opinion of the court. Although ayahuasca consumption might involve certain health risks in individual cases, the information provided by the church to participants of the rituals and the regulated conditions surrounding the consumption within the religious community formed, in the opinion of the court, a sufficient safeguard against unacceptable health risks in those cases that the use of the tea had to be advised against.
Worth mentioning in this context, is the more detailed research the Court ordered before drawing this conclusion. While arresting the church leaders on October 6, 1999, the police also confiscated several joints containing cannabis which were left on the altar in the Amsterdam church, waiting to be consumed by the participants during the rituals. The Court wanted information regarding any eventual extra risks by combining the use of ayahuasca with cannabis. Prof. J.C. Callaway of the University of Kuopio, Finland, Faculty of Pharmacy, could ease the Court on this matter. He wrote to the Court:
Although, there has been some recent concern in combining marijuana (i.e. drug-cannabis) with ayahuasca, however there are no scientific studies or reports to support this concern, neither on the basic scientific level nor on the clinical level. For example, there are no known contraindications between dronabinol (synthetic THC, sold as Marinol) and MAO inhibitors or SSRIs. In fact, the anti-emetic effects of marijuana would probable alleviate at least some of the nausea and occasional vomiting often associated with the use of ayahuasca, which suggests a palliative effect, rather than a putative toxic effect.
International constitutional rights, like freedom of belief, have to be respected by national legislation and jurisprudence. The International Convention on Psychotropic Substances itself, admits that it cannot intervene with national or international constitutional rights (Art. 22a sub 1 of this Convention). It was sufficient reason for the Amsterdam District Court to decide that the prosecution of the possession and delivery of ayahuasca, containing DMT was, in the case of the members of the Santo Daime church, in violation of Art. 9 of the European Convention.
Although the ayahuasca consumption was the central question, the court did legalize the religious use of cannabis in the Santo Daime rituals as well.
8. Constitutional right of intoxication?
The right of free development of the personality
It would be interesting to provoke new experimental procedures based not only on the freedom of religion, but also on the freedom of thought and conscience protected by international treaties. For example, why would the ritual use of ayahuasca or jurema in a quest for spiritual development not be protected by Article 9 of the European Convention or by Art. 18 of the United Nations Covenant on Civil and Political Rights?
Article 8 of the European Convention could also form a base for such a procedure. It protects the right of everyone in: respect for his private and family life.
In 1990, in Germany of all places, the District Court of Lübeck declared the prohibition of cannabis unconstitutional exactly due to this kind of violation of civilian rights. The court called the prohibition of cannabis-use in violation with the principle of equality. It is an undisputed scientific fact, for example, that the use of alcohol or nicotine is a much bigger health risk for someone than the use of cannabis. Despite this fact, it is only cannabis that is officially prohibited by law. The court also argued that the constitutional right of self-determination and free development of personality includes the constitutional right of intoxication, of being high. The search for intoxication is, according to this District Court of Lübeck, a fundamental human desire that is constitutionally protected. The Federal Constitutional Court of Germany in the end, did not accept this far-reaching decision of the Lower Court of Lübeck. However, a similar argumentation was used by the Constitutional Court of Colombia in 1994 by declaring the criminalization of the use of drugs unconstitutional.
Art. 16 of the Colombian constitution consecrates the right to free development of personality. According to this Colombian Court:
If the right of the free development of personality has some meaning within our system, it is necessary to conclude that (.....) the norms that make the consumption of drugs a crime are clearly unconstitutional.
( Constitutional Court sentence of the Supreme Court of Colombia nr. C-221/94, published in the constitutionary gazette 1994, special edition.)
In my opinion several of these mentioned constitutional rights form an interesting opportunity for groups or individuals to fight the current ban in several states on the use of psycho-active substances.
The Convention on psychotropic substances itself, offers wide opportunity for the use of natural materials, plants or animals, which by nature contain hallucinogenics. When a safe social setting is guaranteed, or risk for public health is otherwise minimized, limitations by the government on the use of hallucinogenics should be defined as contrary to constitutional rights, such as freedom of conscience, self-determination, the free development of the personality and respect for one's private life.
It would be nice if, in the near future, several of such experimental procedures could be started.
Mr.Dr. Adele van der Plas (copyright, Amsterdam 2002)