Traditional Knowledge Protection and Human Rights in Sri Lankan Context

1. Traditional Knowledge protection
and Human Rights; with special
reference to International and
Domestic Legal Regime under Sri
Lankan context
Aruni Wijayath (Attorney-at-Law),LL.B
LL.M in Criminal Justice Administration
(Open University of Sri Lanka)
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2. Introduction
 Traditional Knowledge(TK)-accumulated knowledge
innovation and practice of indigenous and local communities
developed from ancient times(e.g- agriculture, medicine, food,
ritual, folklore etc…)
 TK is embedded in the local culture of indigenous people.
Domestic laws relating to TK
Intellectual Property (IP) Act of Sri Lanka (SL)
Section 5-Protection of folklore
Sec: 6-Protection of literacy, artistic & scientific works
Sec:7- Protection of derivative of works
Sec24-Protection of expression of folklore & damages
International Laws relating to TK
Trade related Intellectual Property Rights agreement(TRIPS)-
SL is a signatory and binding from TRIPS –discuss about trade
related intellectual property rights
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3.  Human Rights(HR)-Birth rights of human beings and cannot
be derogated
Constitution of SL consolidated fundamental rights of citizens
SL has ratified cardinal HR treaties such as International
Covenant on Economic, Social and Cultural Rights (ICESCR),
International Covenant on Civil and Political Rights(ICCPR)
Domestic provisions relating to HR those address the TK
Constitution of SL-Fundamental Rights
Article 14(1)(e) freedom to manifest the belief in practice
(f) freedom to enjoy and promote own culture and use
own language
(g) freedom to engage in lawful occupation or trade(e.g –
Traditional Medicine, Ritual practice)
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4. Directive principles of state policy of constitution
Development of cultural and moral standards {Art:27(2)(c),(g)
27(5),(10) &(14)} - cannot enforce by any court or tribunal.
International treaty provisions relating to HR those address TK
International Covenant on Civil & Political rights
Article 18(1) Right to manifest belief and practice it
27-ethnic,religious,lingustic minorities have right to enjoy their
own culture
International Covenant on Economical, Social & Cultural
rights
Art:3-ensure cultural rights
15(1)(a)-right to take part in cultural life,
15(1)(C )-protection of moral interest of the author
15(2) develop the culture
15(3)resulting from any artistic or literary production
respect the freedom of creative activities
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5. Back ground
Local communities use TK to their day to day life to cure, feed
agriculture, natural resource management and wellbeing etc…..
At present TK is in danger due to trade related aspects
E.g.-seeking exclusive patent ownership over the knowledge of
medicinal herbs:Totalahimbutu (Salacia reticulate) patent right
went to Japan from SL
HR -rights gained by all human beings from their birth.TK also
gained by local communities from their birth and it travels from
generation to generation.
In his paper Milius,D held that “TK is explicitly regarded as
part of a bundle of human rights”*
 United Nations Declaration on Indigenous People
Article 31- ensure the TK of indigenous community
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*Justifying Intellectual Property in Traditional Knowledge” IPQ 185(2009)

6. Main objective
Analyze the relationship between the notion of HR and TK
Analyze existing HR mechanism to protect TK in
international and national level
Examine the global development of TK with regard to HR
To suggest possible recommendation to protect TK in HR
perspective
Research Statement
Domestic legislations and International treaties procure
sufficient room to evolve HR and TK as two distinctive paths
although both Domestic and International legal instruments
does not directly address the TK in the light of HR
perspective
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7. Methodology
This work is literary research and mainly based on internet.
Primary sources
The International treaty bodies related to HR will be reviewed.
Further domestic legislations such as constitution of Sri Lanka
and IP act will be examined.
Secondary sources
Scholarly articles related to HR & TK will be analyzed. Law
Journals, News paper articles ,abstracts may be retrieved.
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8. Findings
The only source of protection of TK is found in IP act of SL &
its legal protection radiate to a limited scope of folklore.
The Constitution of SL does not directly address the rights of
indigenous people or their TK.
Constitution gives more priority to cultural development under
state policy yet these principles cannot be enforceable by any
court.
TRIPS agreement concerning moreover on trade related
aspects & lack of recognition of TK & moral rights.
ICCPR & ICESCR are lack of adequate legislations in order
to ensure the rights of local communities and protection of TK
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9. Conclusion
None of the provisions of constitution directly address the
indigenous/local community. New provisions could be
introduced for the advancement of indigenous communities
and their TK through new amendments to the constitution.
ICCPR act does not introduced provisions regarding cultural
minorities to domestic jurisdiction. Further SL does not adopt
ICESCR to domestic jurisdiction. Therefore it is difficult to
enforce cultural rights of minorities through domestic legal
institutions.
None of international treaty bodies or domestic legislation
declare that TK is a set of HR of indigenous communities.
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10. Recommendation
Amend the Article 14(1) of constitution by adding “freedom
to enjoy, safeguard and promote own culture and traditional
knowledge by local communities”
Introduce new laws to IP act to safeguard not only folklore
but other components of TK (healing methods, agricultural
methods, rituals methods,ect….)
Introduce sui generis system to protect TK & plant varieties
Introduce Declaration of Indigenous people to domestic
Jurisdiction.
Amend the constitution to impose legal rights to state
policies
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11. Q & A
THANK YOU!
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