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20 March 2019
Medicine may be one of the most ancient forms of science. In bygone eras, the need to cure an ailment or illness was arguably as important as the need to find food or shelter, and ancient communities around the world developed medicines using the natural resources available in their area.
Traditional medicine is still a primary health resource for millions of people who do not have access to so-called 'modern medicine'. It is also an important component of various cultures, philosophies, religions and social structures. This is particularly true for individuals who belong to groups with a long tradition of using natural resources, such as indigenous groups.
In Mexico, traditional medicine – particularly that of indigenous groups – is extremely varied. This is likely due to the considerable number of Mexican indigenous groups and the country's incredible biodiversity, which includes deserts, mountains, coastal regions and tropical jungles.
Notably, traditional medicine incorporates not only botanical or herbal knowledge and traditions, but also various other elements of a spiritual or philosophical nature, as well as foodstuffs and physical therapies. Further, such medicine has changed in recent centuries and now encompasses therapeutic models and knowledge that fall outside the scope of the earliest types of indigenous medicine.
A considerable percentage of the Mexican population (including purely indigenous communities in both rural and urban areas) still use these therapeutic models and this knowledge.
Traditional medicine and knowledge – both Mexican and foreign (eg, acupuncture or Asian herbal medicine) – is not covered by the general legal provisions governing human health or specifically recognised by the Mexican health authorities. In some cases, traditional medicine has been deemed illegal and attempts have been made to outlaw its practice and promotion. Examples of this can be found in the diverse laws, regulations, official standards and guidelines that forbid the use of diverse plants and substances in, for example, medicines, foods and beverages and cosmetics on the basis of their psychotropic or narcotic qualities or alleged risks.
However, this kind of knowledge has recently received greater recognition by diverse groups in Mexico and throughout the world. The real value of traditional medicine, herbal knowledge and – in some cases – philosophical or spiritual traditions, has taken on a greater importance for society and the diverse authorities in charge of preserving Mexico's cultural heritage.
However, while Mexican law includes specific provisions and legal protection concerning traditional medicine and knowledge, these are rarely implemented by the health authorities due to claims that they have no scientific or 'real' value and pose a risk to the population. The authorities may believe that it is better to receive no medical attention than that which has been used for centuries by a considerable part of the population.
Among the most relevant provisions that support the protection and benefits of traditional medicine are Articles 2, 3, 76 and 133 of the Federal Constitution and Articles 6, 10 and 93 of the General Health Law. The recently published National Institute of Indian People Law is also relevant in this regard.
Articles 2 and 3 of the Federal Constitution establish that Mexico is a pluri-cultural society originally based on indigenous people and their descendants who "preserve their own social, economic, cultural, and political institutions and order".
Articles 2(a)(IV) and (V) of the Federal Constitution set out that indigenous people have the right to self-determination and autonomy with regard to, among other things:
Articles 2(b)(II) and (III) of the Federal Constitution establish that the competent authorities must promote the knowledge and culture of Mexico's indigenous communities and take steps to preserve traditional medicines. Further, Article 3 establishes that education must consider and prioritise the country's culture, including indigenous communities' culture and knowledge.
These constitutional provisions clearly provide a legal basis on which traditional or indigenous medicine should be considered valid. Further, they specifically protect the practice and sharing of such traditional medicine and knowledge.
Further, Article 133 of the Federal Constitution establishes that federal laws and international treaties and agreements adopted by Mexico are valid legal provisions. As such, the United Nations Declaration on the Rights of Indigenous People 2007 establishes the right of indigenous groups to preserve their culture and traditions.
United Nations Declaration on the Rights of Indigenous People
The declaration, defines the minimum standards for the survival, dignity and wellbeing of indigenous peoples around the world and was adopted by an overwhelming majority of UN member states in September 2007. As the four countries that initially voted against the declaration have since reversed their positions, the declaration reflects a global consensus on indigenous peoples' rights and self-determination regarding, among other things, their social and cultural development.
Article 133 of the declaration is valid and applicable in Mexico and – according to certain jurisprudential criterion issued by the Supreme Court of Justice – may take precedence over the General Health Law.
The declaration establishes the right of indigenous communities to preserve their culture and traditions. Specifically, Articles 24 states that "indigenous peoples have the right to their traditional medicines and to maintain their health practices, including the conservation of their vital medicinal plants, animals and minerals".
Further, Article 31 states that:
Indigenous peoples have the 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, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts.
Based on these provisions, it may be deduced that since indigenous people may preserve, implement, practise, transfer and document their cultural knowledge and heritage (including traditional medicine), they may be exempted from complying with certain federal provisions which generally apply in health-related matters.
General Health Law
Additional arguments in this regard are included in Article 6(VI)bis of the General Health Law, which sets out that the national health system must promote the knowledge, development and practice of traditional indigenous medicine. Further, Article 93 establishes that the Ministry of Education and the Ministry of Health must recognise, respect and promote traditional indigenous medicine.
National Institute of Indian People Law
On 4 December 2018 the National Institute of Indian People Law was published in the Federal Official Gazette. The law includes diverse provisions regarding traditional indigenous medicine. Specifically, Articles 4(XLIII) and (XLIV) establish the following as regulated matters:
The promotion, maintenance, strengthening and practice of indigenous people medicine through institutions, knowledge and health practices, including the preservation of medicinal plants. (Article 4(XLIII).)
Support the institutional recognition of the individuals that practice traditional medicine in its different modes and the formation of medical personnel in this matter, with an intercultural perspective. (Article 4 (XLIV).)
These provisions would appear to provide a solid basis for the promotion and practice of traditional medicine in Mexico. However, in reality, this is far from the case.
Unfortunately, traditional medicine and practices do not fall within the scope of the medicines, procedures, cures and therapies which are legally recognised in Mexico and its practice is seldom recognised by the health authorities. In many cases, herbal medicines and remedies are not only disregarded by the authorities, but also formally considered a sanitary or health risk. As such, instead of being promoted, they may actually be deemed illegal.
As such, this human knowledge – despite being legally subject to special protection – may be lost due to a lack of proper publicity and the authorities' failure to promote and preserve it.
Even the UN bodies in charge of the preparation, drafting and implementation of the declaration have recognised the reluctance by some governments to protect indigenous cultures and traditions, which – in the case of Mexico – clearly includes traditional medicine. This reluctance and general negative attitude towards indigenous medicine may even be considered a form of discrimination and marginalisation.
Based on these provisions and the general situation in Mexico, it would be worth analysing the alternative ways in which indigenous groups can promote the legal protection of their culture and traditions and preserve and share traditional knowledge. It would also be worth analysing whether any other laws exist which, in reality, are nothing more than a political move.
For further information on this topic please contact José Alberto Campos Vargas at Sanchez-DeVanny Eseverri SC by telephone (+52 55 5029 8500) or email (email@example.com). The Sanchez-DeVanny Eseverri SC website can be accessed at www.sanchezdevanny.com.
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