Academic journal article The Journal of High Technology Law

Technology Transfer to Combat Climate Change: Opportunities and Obligations under Trips and Kyoto

Academic journal article The Journal of High Technology Law

Technology Transfer to Combat Climate Change: Opportunities and Obligations under Trips and Kyoto

Article excerpt

Cite as 9 J. HIGH TECH. L. 1 (2009)

"[T]here should not be, nor need be, any policy contradiction between upholding and safeguarding an open, non-discriminatory and equitable multilateral trading system on the one hand, and acting for the protection of the environment, and the promotion of sustainable development on the other[.]" --WTO Ministerial Decision on Trade and Environment (1)

I. Introduction

On October 12, 2007, the Norwegian Nobel Committee awarded the Nobel Peace Prize jointly to the Intergovernmental Panel on Climate Change ("IPCC") and Albert Arnold (Al) Gore Jr. "for their efforts to build up and disseminate greater knowledge about man-made climate change, and to lay the foundations for the measures that are needed to counteract such change." (2) Although global climate change has been at the forefront of scientific, political, and legal discussion since the end of the twentieth century, 2007 marked a high-point in public attention to the issue. Unequivocally, the discussion shifted from whether global warming is occurring to what can (and should) be done now to mitigate its effects. (3)

In a 2000 special report, the IPCC acknowledged the essential role of technological innovation and the "rapid and widespread transfer and implementation of technologies" to stabilize and reduce greenhouse gas ("GHG") concentrations in the atmosphere. (4) The report states that the implementation of mitigating measures under the United Nations Framework Convention for Climate Change ("UNFCCC") requires the provision of necessary financial resources and transfer of technology to developing nations. (5) According to the IPCC, in most cases, current technologies may be adequate to reduce GHG emissions. (6) For example, Stephen Pacala and Robert Socolow describe how to stabilize global concentration of atmospheric carbon dioxide (CO2), considered the dominant anthropogenic (7) GHG, during the next fifty years using a combination of fifteen current technologies. (8) Because of the foreseeable rapid growth in energy demands in Asia and other developing countries, some environmental experts are calling for a shift in focus. (9) Rather than concentrating on efforts to reduce GHG emissions in developed countries, the focus should be on the implementation of renewable technologies in precisely those developing nations that are undergoing rapid growth. (10) A recent decision by the UNFCCC, the Bali Action Plan, calls for enhanced action on technology transfer and development, including scaling up transfer of technology to developing countries to promote access to environmentally sound technology ("EST"). (11)

More than seventy-five percent of the parties to the UNFCCC are also members of the World Trade Organization ("WTO"). (12) Some member countries of the UNFCCC view the current intellectual property rights framework imposed by the WTO as a barrier to transfer of ESTs to developing countries. (13) Among legal scholars, strong intellectual property rights protection and proprietary licensing have been criticized as impeding access to renewable energy technology. (14) This Note will explore the following legal issues arising from the UNFCCC mandate to transfer EST to developing countries: (1) the effect of the WTO Agreement on Trade Related Aspects of Intellectual Property Rights ("TRIPS") on the transfer of EST, and (2) whether developing countries may use TRIPS provisions to achieve transfer of EST on economically favorable terms.

II. History

A. International Climate Change Agreements

a. The Intergovernmental Panel on Climate Change ("IPCC")

In 1988 the World Meteorological Organization ("WMO") and the United Nations Environment Programme ("UNEP") jointly established the IPCC to assess available information on the science, impacts, and economics of climate change and to formulate adaptation and mitigation options. (15) The IPCC has produced a series of reports and technical papers that are standard works of reference for policymakers, scientists and other experts. …

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