beyond technology transfer: protecting human rights in a climate-constrained world

8/3/2019 Beyond Technology Transfer: Protecting Human Rights in a Climate-Constrained World

1/164


2/164


3/164

Beyond Technology Transer:

Protecting Human Rights in a

Climate-Constrained World


4/164

The International Council on Human Rights Policy (ICHRP) thanks theDepartment or International Development (DFID), United Kingdom; theCatholic Overseas Development Agency (CAFOD); Christian Aid; theFord Foundation; the Ministry or Foreign Aairs o Finland; the Ministryo Foreign Aairs o Norway; the Netherlands Ministry o Foreign Aairs;

the Swiss Agency or Development and Cooperation (SDC); and theSwiss Federal Department o Foreign Aairs (DFAE) or their nancialcontributions to this project.


5/164

Beyond Technology Transer:

Protecting Human Rights in a

Climate-Constrained World

2011 International Council on Human Rights Policy


6/164

2011 International Council on Human Rights Policy17 rue Ferdinand-Hodler, CH-1207 Geneva, Switzerland.

Beyond Technology Transer: Protecting Human Rights in a Climate-ConstrainedWorld, 2011. International Council on Human Rights Policy. Geneva, Switzerland.

Most rights reserved.No part o this publication may be reproduced, stored in a retrieval system ortransmitted in any orm or by any means, electronic, mechanical, photocopying,recording and/or otherwise without the prior permission o the publisher.

The designation o geographical entities in this report and the presentation o thematerial do not imply the expression o any opinion by the International Councilon Human Rights Policy concerning the legal status o any country, territory, orarea, or o its authorities, or the delimitation o its rontiers or boundaries.

The International Council on Human Rights Policy is a non-prot oundationregistered in Switzerland.

ISBN 2-940259-53-4

Cover illustration: The Trustees o the British Museum, Turning a DeepChasm into a Thoroughare by Wei Zixi.

Design and layout by Benjamin D. Peltier, Publications and Communications Ocerat the International Council on Human Rights Policy.

Printed by Imprimerie Villire, Beaumont, France.

Vegetable-based inks.

Climate-neutral print.

This report is available rom:

ICHRP

17 rue Ferdinand-HodlerCH-1207 GenevaSwitzerlandPhone: +41 (0) 22 775 33 00Fax: +41 (0) 22 775 33 [email protected]


7/164

Beyond Technology Transer: Protecting Human Rights in a Climate-Constrained World i

CONTENTS

Acknowledgements vii

noteonthe text ix

executive summAry xiii

Recommendations xix

i. technology trAnsfer todAy: Addressingthe impAsse 1

A. Human Rights and Technology Transer 3

B. The Need or Technology Transer 6

1. Mitigation 8

2. Adaptation 11

C. Defning the Terms 13

1. Technology: hardware, know-how, training 14

2. Transer: something more than trade 14

3. Public and private goods and actors 15

4. Developed and developing countries 17

D. Conclusion 18

ii. humAn rightsAnd technology trAnsfer: the ethicAl cAse 19

A. Human Rights Arguments or Technology Transer 21

1. Adaptation 23

2. Mitigation 25

3. Restitution 27

B. Responsibilities and Duty-Bearers 29


8/164

ii Beyond Technology Transer: Protecting Human Rights in a Climate-Constrained World

iii. technology trAnsferin climAte chAnge lAwAnd policy 33

A. Technology Transer in Climate Change Law 33

1. An obligation on Annex 2 Parties owed

to non-Annex 1 Parties 34

2. An obligation to promote, acilitate and fnance

technology transer 36

3. To take all practicable steps 38

4. Environmentally sound technologies 38

5. Other relevant obligations 39

B. Technology Transer in the UNFCCC Process 42

1. The ramework or technology transer

within the UNFCCC 43

2. Development, application and diusion 47

C. Mechanisms or Technology Transer in the UNFCCC 51

1. The Global Environment Facility 51

2. The GEF strategic programme on technology

transer 53

3. The GEF adaptation strategy 55

4. The Clean Development Mechanism 56

iv. BArriers to technology trAnsfer 59

A. Market Barriers 60

B. Structural Barriers (Intellectual Property Rights) 61

1. The Drat International Code o Conduct

on the Transer o Technologies 64

2. Trade-Related Aspects o Intellectual Property

and Services 66

C. Managing Intellectual Property Rights in Technology

Transer 71

1. Compulsory licensing 71

2. Open licensing 73

3. Patent pools 75

4. Public domain 76

D. Proactive approaches to intellectual property rights 77


9/164

Beyond Technology Transer: Protecting Human Rights in a Climate-Constrained World iii

v. humAn rightsAnd technology policyfor AdAptAtion 79

A. Food Security and Climate Change 81

1. Expected eects o climate change on ood security 81

2. Technologies or adaptation in agriculture 84

B. The Right to Food in Promoting Access to

Technologies or Adaptation 86

1. What is the right to ood? What does it imply? 87

2. The transer o technology in realizing the

right to ood 93

3. The obligation to respect 93

4. The obligation to protect 96

5. The obligation to ulfl 99

C. The Right to Food in Identiying Technology

Needs and Responses 99

1. Assessing needs 100

2. The right to ood provides indicators or interventions 102

3. Determining adequate technological responses 104

vi. humAn rightsAnd technology policyfor mitigAtion 107

A. The Role o Technology Transer 108

B. The Mitigation Challenge 113

C. Universalising Access to Clean Energy Sources 116

1. The Greenhouse Development Rights ramework 118

2. The role o technology transer in achieving universal

access to electricity 122

D. Respecting Human Rights in Technology Transer or Mitigation 124

E. Conclusion 126

vii. conclusionAnd recommendAtions 127

A. Conclusion

B. Recommendations 128


10/164

iv Beyond Technology Transer: Protecting Human Rights in a Climate-Constrained World

TEXTBOXES

Box 1. Article 4.5 o the UNFCCC 34

Box 2. Other Commitments to Technology Transer

under Article 4 o the UNFCCC 40

TABLES

Table 1. Examples o technologies or adaptation in agriculture 86

Table 2. FIVIMS Food Security and Nutrition Indicators 103

Table 3. Percentage Shares o Global Population, GDP,Capacity, Responsibility and RCI or Select

Groups o Countries 121


11/164

Beyond Technology Transer: Protecting Human Rights in a Climate-Constrained World v

ACRONYMS

AGECC UN Secretary-Generals Advisory Group on Energy andClimate Change

BAU Business-As-Usual (scenario)

BIT Bilateral Investment Treaty

CCS Carbon Capture and Storage

CDM Clean Development Mechanism

CERs Certied Emissions Reductions

CIEL Centre or International Environmental Law

COP Conerence o the Parties

DCCIPR Declaration on Climate Change and Intellectual PropertyRights

EGTT Expert Group on Technology Transer

ESTs Environmentally Sound Technologies

FAO Food and Agriculture Organization

FIVIMS Food insecurity and vulnerability inormation and mappingsystems

GDP gross domestic product

GDRs Greenhouse Development Rights

GEF Global Environment Facility

GHG greenhouse gas

ICCPR International Covenant on Civil and Political Rights

ICESCR International Covenant on Economic, Social and CulturalRights

ICHRP International Council on Human Rights Policy

IEA International Energy Agency

IIAs International Investment Agreements


12/164

vi Beyond Technology Transer: Protecting Human Rights in a Climate-Constrained World

IP intellectual property

IPCC Intergovernmental Panel on Climate Change

LDCF Least Developed Countries Fund

LDCs least developed countries

MDG Millennium Development Goal

NPS New Policies Scenario

R&D research and development

REDD Reducing Emissions rom Deorestation and Degradation

SCCF Special Climate Change Fund

SEI Stockholm Environment Institute

SRTT Special Report on Methodological and TechnologicalIssues in Technology Transer

TNA Technology Needs Assessment

TRIPS Trade-Related Aspects o Intellectual Property andServices

UNCTAD United Nations Conerence on Trade and Development

UNEP United Nations Environment Programme

UNFCCC United Nations Framework Convention on ClimateChange

VCLT Vienna Convention on the Law o Treaties

WEO World Energy Outlook

WFP World Food Programme

WIPO World Intellectual Property Organization

WTO World Trade Organization


13/164

Beyond Technology Transer: Protecting Human Rights in a Climate-Constrained World vii

ACKNOWLEDGEMENTS

This report was drated by Stephen Humphreys, Lecturer in Law atthe London School o Economics and Consultant with the InternationalCouncil on Human Rights Policy (ICHRP). It is based on original

research undertaken in 2009 and 2010 commissioned by the ICHRP. Sixpapers were discussed at a review meeting held in Geneva, togetherwith the authors and other experts in July 2009, and each paper wassubsequently revised. These provided a basis or much o the presentreport. In particular, Chapter 2 o this report is based on the paperproduced by Simon Caney, Chapter 5 largely reproduces a paper byMara Julia Oliva, and Chapters 4 and 6 draw on papers produced bythe Centre or International Environmental Law (CIEL) and John Barton,respectively. The six papers produced or this project are as ollows:

Future Climate Technology Regimes: An Assessment o the Macro-Environmental Context rom a Human Rights Perspective JohnBarton, Stanord University;

Climate Technology Transer: A Derivation o Rights- and Duties-Bearers rom Fundamental Human Rights Simon Caney, Universityo Oxord;

Technology transer in the UNFCCC and Other International LegalRegimes: The Challenge o Systemic Integration CEIL (MarcosOrellana and Dalindyebo Shabalala);

Health: Human Rights, Climate Vulnerability and Access toTechnology Sisule Musungu, IQSensato;

Promoting the Transer o Technologies or Adaptation in Agriculture:A Role or the Right to Food? Mara Julia Oliva, Union or EthicalBiotrade;

Technology Policies to Support Adaptation in Developing Countries:Equity and Rights Considerations Stockholm EnvironmentalInstitute (Sivan Kartha, Clarisse Kehler Siebert and Richard Klein).

An advisory panel attended the meeting and gave eedback on the project:

Steanie Grant, M.J. Mace, Romina Picolotti, Dinah Shelton, Youba Sokona,Balakrishnan Rajagopal and Mohan Munasinghe were also members othe advisory panel. At the review meeting, Philippe Cullet, Mac Darrow,Caroline Dommen, Clare Mahon and Matthew Stillwell provided invaluableinsight and commentary. Kasia Snyder and Angela Onikepe providedextensive research assistance at the ICHRP. Shortly ater his exemplarycontribution to this project, Proessor John H. Barton passed away. Weextend our respects and deepest sympathy to his amily.


14/164


15/164

Beyond Technology Transer: Protecting Human Rights in a Climate-Constrained World ix

NOTE ON THE TEXT

In June 2008, the ICHRP published Climate Change and Human Rights:A Rough Guide, tracking the main human rights concerns raised byclimate change and exploring possible areas o synergy in law and

policy. As a rst attempt to broach a topic o growing policy importance,the report met a broad need and has been well-received.

As a ollow-up to this initial research, the ICHRP launched a secondproject, aiming to draw out in detail how human rights are relevant toa central and practical area o climate change policy. Following anextensive review period and the commission and delivery o a easibilitystudy by the CIEL, technology transer was chosen as the theme orurther research because o its evident and ar-reaching human rightsimplications that have so ar not been examined or ully articulated.

The theme was also chosen because it is a topic that other researchinstitutions were less likely to pick up, unlike some o the other humanrights issues identied in the original Rough Guide, such as threatsto ood, water, health or housing, the rights implications o ReducingEmissions rom Deorestation and Degradation (REDD) programmesor biouels, or the looming problem o climate-related migration andconfict.1 Finally, technology policy is a cross-cutting issue in theclimate change domain, touching on mitigation and adaptation aswell as on substantive issues such as ood and water security andhealth and housing inrastructure. The means by which technology

moves between states takes us into the heart o international legal andcommercial processes that are not, or the most part, constructed in away conducive to reducing the impact o climate change.

Technology transer has been consistently central to the climate changeregime since the UNFCCC was signed in Rio, in 1992. Its centralitywas robustly rearmed when the parties to the UNFCCC met in Bali inDecember 2007. There, technology was identied as one o our pillarso any uture climate change settlement (alongside mitigation, adaptationand nance). Despite the relative lack o progress at Copenhagen in 2009,

1 Indeed, many o these issues have since been subjected to extensive research. Anumber among the UN Human Rights Councils Special Procedures have examinedthe impacts o climate change on the areas o their mandate. Notably, the SpecialRapporteur on Adequate Housing, the Special Rapporteur on the Right to Food andthe Special Rapporteur on Extreme Poverty and Human Rights have looked into thisquestion. For an excellent study, see the position paper o the Independent Experton the Human Rights to Water and Adequate Sanitation, Climate Change and theHuman Rights to Water and Sanitation (2010), available online at: www2.ohchr.org/english/issues/water/iexpert/docs/Climate_Change_Right_Water_Sanitation.pd .


16/164

x Beyond Technology Transer: Protecting Human Rights in a Climate-Constrained World

technology remained at the heart o the Copenhagen arrangements andalso eatured in the Cancn Agreements o late 2010, at a time whenhuman rights also ormally entered the treaty language.

Technology transer is needed both to help poorer and more vulnerable

countries and communities adapt to the now inevitable consequenceso climate change in the short term, and to assist them in moving on tolow-carbon development pathways in the longer term. Human rightsare relevant to the technology questions that arise in both these policyareas: adaptation policies in the short term and mitigation measures overthe long term. Highlighting the human rights benets o technologicalinterventions may create a space or re-raming and circumventing theunsustainable dynamic that has largely characterised debate o thissubject to date. In this regard, human rights oer a strong ethical andlegal basis rom which technology transer might be approached.

The ICHRP project on climate technology policy and human rights, whichlaunched in 2009, rested on three pillars o research, comprising core areaswhere human rights are relevant to technology transer law and policy:

(1) Examining how attention to the human rights implications oclimate change can help identiy where technologies are mosturgently needed or adaptation, the project investigated rightsto ood and to health (the present report concentrates on ood),as well as reviewing the context within which technology transeror adaptation takes shape.

(2) Researching, in the context o mitigation policies, the humanrights implications o the long-term development constraintsimposed by climate mitigation, particularly or LDCs, with a viewto assessing the implications or technology transer, both at theconceptual and policy levels.

(3) Exploring the relevant international law architecture reviewingintellectual property (IP) and international investment law alongsideenvironmental and human rights obligations to clariy howinternational law helps or hinders the ullment o human rightsthrough technology transer.

The ICHRP commissioned six papers rom leading experts in climatechange, human rights and ethics, international environmental, trade andIP law, and technology transer. In July 2009, the ICHRP held a meetingin Geneva discussing drat papers with a broader group o key experts.Revised papers were received in 2010. The present report takes accounto this process as a whole as well as Conerences o the Parties (COPs) tothe UNFCCC held in Copenhagen and Cancn.


17/164

Beyond Technology Transer: Protecting Human Rights in a Climate-Constrained World xi

In each case, the papers approached technology transer through thelens o the original UNFCCC articulation o the problem (i.e., primarilyin terms o an obligation on developed countries, who thus gure inthe oreground o the report). The report does not, however, assumethat technology transer involves a passive transer o technology or

expertise rom North to South. It is not clear that such a conceptiono technology transer has, in act, ever predominated, although it isrequently invoked as a barrier to action.

Beyond Technology Transer: Protecting Human Rights in a Climate-Constrained World, addresses issues that are central to technologypolicy at a critical time and aims to explain the concerns o environmentalactivists and o human rights advocates so that common principlesmight be ound and a common position orged. Technology transer hasgenerally been conceived o as a means to address a central injusticeassociated with climate change that activities that have primarilybeneted the people o the worlds richest states will disproportionallyaect those living in the worlds poorest states. It has long beenrecognised as an indispensable element o a stable uture and a globaldeal. The ICHRP report shows that it is more than that, however: it isalso a principal means by which basic human rights standards mightstill be attainable or the worlds most vulnerable people in a climate-constrained uture.

In December 2010, in Cancn, Parties to the UNFCCC ormally agreed,or the rst time, in all climate change-related actions, [to] ully respect

human rights. This report shows the way orward with regard to onecentral pillar o the climate change regime: technology policy.


18/164


19/164

Beyond Technology Transer: Protecting Human Rights in a Climate-Constrained World xiii

EXECUTIVE SUMMARY

Beyond Technology Transer: Protecting Human Rights in a Climate-Constrained Worldargues that international climate change technologypolicy can and must take human rights concerns into account i it is

to unction justly and eectively.

The report also suggests that the urgency o the threats climate changeposes to human rights can play an important role in kickstartingtechnology policy, which has long been stalled at the international level.

The report starts rom two premises, each o which is now widelyshared. The rst is that any solution to climate change depends uponrobust technology policies.

There are no quick technological xes to climate change, o course, but

technology development and diusion is an indispensable element inall available scenarios or addressing climate change. Still, although ithas been a key principle o the climate change negotiations or almosttwo decades, there has been very little progress in implementing thetechnology provisions o the United Nations Framework Convention onClimate Change (UNFCCC).

The second premise is that climate change has proound human rightsimplications, and that solutions to climate change will only be eectivei they integrate human rights concerns.

The report suggests that human rights can help move technology policyorward. Human rights can provide the minimal platorm o agreementon policy steps regarding technology at the international level. Theycan do so in the context o both mitigation and adaption policies.

Climate change mitigation requires a dramatic shit towards low-carbon technologies in every walk o lie a shit that must ultimatelytake place globally. Among other things, this means that countries thatlack access to low-carbon technologies will nd their developmentoptions increasingly limited. This in turn will have predictable deleteriouseects on a host o human rights. To avoid this scenario, renewableenergy technologies will need to be gradually universalised.

Climate change adaptation is o greatest urgency in the developingworld, where the worst eects o climate change are already beingelt. Here too, access to technologies is critical. In these cases,threats to human rights can unction as a kind o early warning system,helping locate where technologies will be most useul and are neededmost urgently. Examples include technologies relating to seawalls,desalination, seeds and agricultural techniques, vaccines, and so on.


20/164


21/164

Beyond Technology Transer: Protecting Human Rights in a Climate-Constrained World xv

an obstacle to technology policy. Indeed, the argument over IP rights islargely a distraction rom the main problem which is simply a ailure tosystematically pursue the technology provisions o the UNFCCC. ThisICHRP report concludes that it is time to move on and indeed theCancn Agreements provide an opportunity to do so by introducing a

new Technology Mechanism.

That said, it is nevertheless useul to recall the main legal points o theUNFCCC provision on technology transer:

Technology transer involves an obligation under the Convention; The obligation is on developed countries and owed to developing

countries; The obligation is to promote, acilitate and nance technology

transer; Technology means hardware, but it also covers know-how and

presumably training; Transer indicates something more than trade or business as

usual: it is proactive.

The precise nature o this legal obligation is not crystal clear, however,and it is probably unproductive today to approach technology transeras a simple matter o rights and duties. Technology policy will onlysucceed i based on international cooperation.

There are a number o points upon which everyone is agreed:

(1) The greater responsibility or climate change, both historical andcurrent, o the worlds wealthiest countries provides the practicaland moral basis or technology transer.

(2) Without concerted action to eect technology transer, climatechange will wreak havoc that might otherwise be avoided,particularly in the least developed countries (LDCs).

(3) Technology transer cannot be a passive process betweenNorth and South. Policy must refect the priorities o both sendingand receiving countries and private actors.

(4) Technology transer is not a coercive process. It involveschannelling the power o private initiative into a shared andurgent public interest.

human righTs can mobiliseand inform Technology Policy

At Cancn, or the rst time, the working climate change text recognisedthe importance o ully respect[ing] human rights in all climate


22/164

xvi Beyond Technology Transer: Protecting Human Rights in a Climate-Constrained World

change-related actions. Technology, which is one o the our pillarso the Bali Action Plan, is clearly one o the climate change-relatedactions to which human rights are relevant. But what does this mean?

At rst glance, it involves recognising the degree to which human rights

are impacted by the ailure to move on technology transer. The delayon technology policy is itsel a cause o human rights harm.

But beyond this, we are called to take account o human rights inconstructing technology policy.

How might that work? At present, most developing countries haveproduced Technology Needs Assessments (TNAs), in which theircritical technology needs or both mitigation and adaptation are listed.This has been an immensely valuable process and begins to set acompass or technology policy internationally.

TNAs have not, and cannot on their own, provide the impetus or aproactive technology policy that must ultimately be set in technologyexportingcountries, albeit with the active participation and agreemento technology importers.

The report proposes that human rights provide an appropriate wayto organise and orient technology policy and to prioritise needs andobjectives in both adaptation and mitigation. Among the many pointsraised by the report, six key issues bear mentioning:

1. A ocus on human rights can help decide on which

technologies to concentrate national policies

The identication o particular human rights threats caused by climatechange provides a sound basis or prioritising the technologies bestsuited to meeting those threats. For example, human rights standardscould be mainstreamed into the TNAs, by ocusing on the vulnerabilityo particular persons in certain sectors (such as health, ood security,water availability, housing security, cultural integrity and so on).

2. Human rights can help international coordination o

technology policy

I properly coordinated, TNAs can identiy common human rights concernsacross many countries. The act that human rights embody generally agreedstandards is key here: persons vulnerable to human rights threats constitute,in principle, a priority or international as well as domestic law and policy.

The ull report says more about what such policies might involve. Theycould include multilateral mechanisms to incentivise, subsidise


23/164

Beyond Technology Transer: Protecting Human Rights in a Climate-Constrained World xvii

and mobilise technologies across borders. They may also involve thecreation o patent pools and exemptions.

3. Making clean energy universally available is vital to protect

human rights as climate change encroaches

At present, 1.4 billion people live without access to electricity and at least2.7 billion depend on biomass burning or their cooking and heating. Arecent report by a special advisory group to the UN Secretary-Generalmakes clear that universalising access to modern and clean energytechnologies is aordable, manageable and urgent.

Such a policy is also indispensable i the worlds LDCs are to adapt toclimate change in the near-term and to contribute to global mitigationeorts over the longer term.

4. Least developed countries must constitute a priority ortechnology policy

The countries most vulnerable to climate change harms and least wellequipped to address them must be a starting point or international policyon both mitigation and adaptation technologies. These countries arevulnerable to more than the eects o climate change alone. Once globalmitigation measures are even partly successul, carbon-based energyand transport will become increasingly expensive whereas renewableequivalents will likely remain expensive through the mid-term.

LDCs will, rightly, not be required to take on emissions targets in thenear term. As a result, they might nd themselves stranded with high-carbon low-eciency inrastructure, increasingly out o step with a low-carbon global market. This must be avoided, all the more so as thesecountries begin to experience human rights deterioration and resourcepressures caused by climate change.

5. The human rights principles o participation, consultation,

accountability and access to justice provide a key resource

in the construction o international policy

These principles are best articulated at the international level in the AarhusConvention on public participation in decision-making on environmentalmatters, which, although it lacks universal ratication, is neverthelesssigned by a majority o the Annex 2 states. Abiding by these principleswill help avoid many o the pitalls associated with technology transerin the past, where in some cases technologies were delivered withoutattention to local capacity to absorb or use them, leading to disuse ormisuse, and giving the principle itsel a bad reputation.


24/164

xviii Beyond Technology Transer: Protecting Human Rights in a Climate-Constrained World

6. A human rights ocus can help the technology transer

debate transcend the old and worn-out arguments about

intellectual property

Technology transer has been stalled on the issue o IP rights or too

long. The debate is increasingly academic and abstract. It is time tomove on.

There are a number o reasons to encourage a change o gears on thissubject:

(1) Policy on technology need not pivot entirely on IP rights manyo the technologies in question do not involve signicant patentroyalties.

(2) The combination o climate change and human rights concerns

are suciently pressing that they must encourage state-led coordination on technology development and diusion,involving incentives and subsidies. In return, the inclusion opatent pooling or open licensing requirements will not only beappropriate, it will also be ecient and will t well within existingIP protections.

(3) There is scope within the UNFCCC negotiations to tackle thisproblem head on and to ensure the international legal context isprepared or IP rights reorm. Should it be thought helpul to doso, human rights concerns provide an appropriate impetus.


25/164

Beyond Technology Transer: Protecting Human Rights in a Climate-Constrained World xix

recommendaTions

1. To All Governments

Despite almost 20 years o negotiation and accumulating evidenceo climate harms, there is as yet no actionable international policy ontechnology transer. Without access to a variety o technologies, the humanrights o hundreds o millions are at risk rom climate change. Mobilisingtechnology transer policy is thereore crucial to the uture security ohuman rights and, more broadly, to global security generally. Agreementon an international technology regime is o undamental importance to thesuccess o climate change policy and must be prioritised. It need not waitor prior agreement on binding targets. Future rounds o negotiations mustattend to the construction o a robust technology regime, drawing on theconsiderable work carried out by the EGTT and others.

__ The decision at Cancn to create a Technology Mechanism,consisting o a technology executive committee and technologycentre and network, is an important step in actualising technologypolicy. The Mechanism must build on the work o the EGTT, but itwill nevertheless be uniquely positioned to bypass the long-runningobstacles in this area and ocus on a vision o technology transerthat will do justice to the longstanding hope invested in it.

__ A working and coherent denition o technology transer is vital.The denition must recognise that technology is not limited tohardware, but also involves know-how and IP, and that transer is

not limited to acilitation o trade and markets but involves proactivepublic policy measures to ensure technologies move betweencountries to those who need them most and are deployed in amanner that does not pose undue risks to human rights, security,the environment or livelihoods.

__ Human rights standards can ull a number o roles in movingclimate technology policy orward:

(i) They can serve as indicators or identiying technologiesneeded in specic locations.

(ii) They can provide a means o coordinating internationalpolicy on priority technologies, priority destinations andtechnological risks.

(iii) They can serve as a basis to guide and monitor the manner inwhich technologies are transerred and deployed in practice.

(iv) They can provide an eective moral, legal and rhetoricalimpetus or more clearly dening the rights and obligationswith respect to technology transer.


26/164

xx Beyond Technology Transer: Protecting Human Rights in a Climate-Constrained World

__ IP rights have long posed a signicant obstacle to progress intechnology transer. It is time to move on rom this debate, as theincreasingly pressing human rights concerns make clear:

(i) IP rights may not pose a practical obstacle or all relevant

technologies. Policy can move orward switly, or example,on the transer o energy-eciency techniques, establishedadaptation measures, and some renewable energytechnologies that do not incur prohibitive royalties.

(ii) Governments can move orward proactively with incentives andsubsidies to promote patent pools and open licensing in thedevelopment o technologies or both adaptation and mitigation.

(iii) Multilateral agreements and programmes, including publicprivate partnerships and partnering between developed anddeveloping countries, will be increasingly vital.

(iv) In extreme cases, where human rights emergencies arisedue to climate change, states can lawully turn to compulsorylicensing to ensure that technologies reach those most inneed, should IP rights pose an obstacle.

2. To Annex 2 Country Governments

In its provisions on technology transer, the UNFCCC speaks oAnnex 2 and other developed country parties. Although this doesnot constitute a clearly dened duty-bearer, the specic countriesnamed in Annex 2 nevertheless have legal obligations in this domain.

The ollowing recommendations are directed at Annex 2 and otherdeveloped countries, individually and collectively.

__ Annex 2 countries are explicitly obliged under the UNFCCC toacilitate, nance and promote the transer o environmentallysound technologies to non-Annex 1 and developing countries.Annex 2 country governments are also well-placed to mobilisetechnology transer and generate economies o scale ortechnology developers and producers worldwide. To date,however, Annex 2 countries have done little to ull this obligation.It is now urgent that they take the lead.

__ Given the threat climate change poses to human rights in vulnerablecountries, Annex 2 country Governments must now take proactivesteps to mobilise climate-relevant technologies between countries. Aconstructive approach will resist casting technology transer solely innarrow terms o open markets, IP rights and enabling environments. Itwill recognise that without decisive action by and agreement amongstates, technology movements will be too ew and too late.


27/164

Beyond Technology Transer: Protecting Human Rights in a Climate-Constrained World xxi

__ Annex 2 Governments are well-placed to contribute technologicalexpertise and nancial support, including through multilateralmechanisms or the eective transer o technologies. The creationo mechanisms such as technology pools, including patent pools,will involve agreements on subsidies, investment incentives, R&D,IP rights, open licensing and technology dissemination.

__ All Annex 2 measures must necessarily be responsive to thegoals outlined in recipient country TNAs, National AdaptationPlans o Action and Nationally Appropriate Mitigation Activities,as well as to the instructions o the COPs to the UNFCCC and tothe human rights obligations o all parties.

__ Annex 2 countries should incorporate their UNFCCC technologyobligations into their development policies and into those o theinternational nancial institutions. Human rights provide a means

o assessing and orienting development policy with regard toclimate technologies or adaptation and mitigation. The AarhusConvention is among the relevant treaties in this regard.

3. To Non-Annex 1 Country Governments

Although named in the UNFCCC as the beneciaries o its provisionson technology transer, non-Annex 1 countries do not constitute abloc or shared set o interests, economically, legally or politically. Theollowing recommendations are thus aimed at the various groupingsthat comprise non-Annex 1 countries, and in particular the LDCs.

__ Non-Annex 1 Governments would benet rom an assessmento the degree to which expected climate harms will have humanrights impacts in their countries. These evaluations should inormthe identication o technologies in country TNAs, NAPAs, NAMAsand NTPs, with a view to providing clear recommendations to theinternational community, and to donors and nancial institutions,on the prioritisation o adaptation and mitigation technologies oraddressing climate change.

__ SouthSouth technology transer, as practiced notably by Brazil,

is an invaluable resource and may have a demonstration eect inshowing how best to construct successul models o technologytranser. It is not, however, a substitute or the technology transerprovisions o the UNFCCC.

__ LDCs and other recipients o development aid are well-placedto negotiate the deployment o aid towards the ullment ohuman rights by virtue o Article 2.1 o the ICESCR. Climatechange-related aid in particular will be well targeted where it is


28/164

xxii Beyond Technology Transer: Protecting Human Rights in a Climate-Constrained World

oriented towards current or predicted human rights threats toood, water, health, housing and livelihoods, in particular, or toward o orced migration.

__ Non-Annex 1 countries that are not LDCs may be well placed to

take the lead on demonstrating climate-constrained developmentalpaths that can successully incorporate human rights obligations, inpart through investment in, and R&D o, indigenous technologies.

4. To Civil Society Organisations

__ Legal advocacy groups dealing with human rights orenvironmental law (or both) could explore the degree to whichobligations undertaken through the UNFCCC, human rightstreaties, or elsewhere may leave states or private entities liableor actions that have blocked or ailed to acilitate technologicaltranser with human rights consequences.

__ Environmental organisations and especially climate changegroups may benet rom incorporating human rights goals andstandards into their work on climate change technology.

__ Human rights organisations must take seriously the threat oclimate change and show an openness to public policy positionsthat might not t easily within classical human rights discourse.

__ Social science and research institutions must orge a road aheador technology transer, by demonstrating where technologies

can most useully be adapted to dierent contexts and how theycan most eciently contribute to the twin goals o urtheringhuman rights and development in the ace o climate change.Research must also be undertaken into the legal and practicalobstacles to climate change technology transer.

5. To UN and Other International Agencies and Bodies

__ The UNFCCC Secretariat should consider the creation o aworking group on human rights and climate change with a viewto inorming the construction o the Technology Mechanism andother relevant bodies. It should urther empower the existinghuman rights liaison at the Secretariat.

__ The UN Human Rights Council should continue to remainapprised o developments at the UNFCCC, to undertake its owninvestigations in this area, and to ensure that the human rightsconsequences o climate change are closely monitored andaddressed. The Council should consider the appointment o aSpecial Procedure on climate change and human rights.


29/164

Beyond Technology Transer: Protecting Human Rights in a Climate-Constrained World xxiii

__ As the principal ormal locus o research into the human rightseects o climate change, it is vital that the Oce o the HighCommissioner o Human Rights retain a presence in this researchdomain and continue to infuence policy.

__ A number o UN Special Procedures have been ollowingclimate change developments, integrating it into their mandatesand making valuable recommendations. These include theSpecial Rapporteurs on the Right to Adequate Food; on theRight to Housing; on the Right to Health; on Extreme Povertyand Human Rights; and the Independent Expert on the Right toWater and Sanitation. In each o these areas, and where otherSpecial Procedures are touched by climate change, it would bevaluable to undertake investigations into the role o technologyin exacerbating or addressing the human rights harms o climatechange and recommending policy orientations to governments.

__ The Committee on Economic, Social and Cultural Rights is ideallyplaced to seek inormation rom countries on the degree to whichtheir technology policies meet their human rights obligationswith regard to the impacts o climate change or the manner inwhich the inappropriate deployment o risky technologies mightcompromise human rights.

__ Other UN bodies principal among them UNEP, UNDP, UNCTADand the WHO will nd it ruitul to integrate the technologyhuman rights nexus into their work. Studies might be undertaken

within each agency with a view to making recommendations onthe optimal mode o integrating climate technology exigenciesin their particular mandates.

__ Technologies relevant to disaster preparation and early warningsystems will be vital to humanitarian agencies such as the ICRC,IFRC and UNHCR. In each case, human rights language mayprovide a useul motivator or mobilising unding and energytowards creating the technological inrastructure to manageclimate harms beore they become catastrophic.

__ There is a role or agencies dealing with trade and IP, notably atthe WTO and WIPO, to investigate the existing legal architecturein order to determine whether it helps or hinders the transer otechnologies necessary to mitigate the human rights impacts oclimate change. Given its mandate, WIPO is particularly well-placed to explore multilateral approaches to options o patentpooling and open licensing in the climate technology domain.


30/164


31/164

Beyond Technology Transer: Protecting Human Rights in a Climate-Constrained World 1

I. TECHNOLOGY TRANSFER TODAY:ADDRESSING THE IMPASSE

Technology transer has been a raught issue within the climate changenegotiations over the years, and or good reason: all parties recognisethe centrality o technology to any solution to climate change, butdeep-seated dierences exist over how the movement o technologiesbetween states should be managed and allocated. Technology lies atthe heart o climate change policy in part because progress in bothmitigation and adaptation the two key areas o urgent action toaddress climate change necessarily relies on technological solutions.Technology transer takes on special prominence given the imperative,both political and legal, o achieving long-standing developmentobjectives in a world increasingly subject to the powerul constraintsclimate change imposes.2

It is, however, the very centrality o technology to each o these areas opolicy that has complicated international agreement. It is not enoughto ask whattechnologies are needed to address climate change: wealso need to know how to ensure that the relevant technologies canin act achieve the goals expected o them. For this to happen, theright technologies must reach the right people. To know which arethe right technologies and whoare the right people involves a serieso value judgements about what, precisely, climate change policyshould be doing beyond the consensus view that it must put a halt

to the phenomenon itsel and contain or reverse, insoar as possible,its eects.

Put another way, i we can identiy the most pressing technologicalsolutions or specic climate change problems, we still must gure outhow to make these technologies available in response to the identiedneeds. It oten seems as though this latter question o technologicalaccess or distribution has been the sticking point in internationalnegotiations on technology transer. Beore the question o access caneven be addressed, however, problems arise at the level o identiying

the needs that require xing. There are numerous possible climatechange needs: how are they to be prioritised?

2 The best account o this relationship is Paul Baer, Tom Athanasiou, Sivan Kartha,and Eric Kemp-Benedict, The Greenhouse Development Rights Framework,Revised second edition, EcoEquity/SEI (November 2008).


32/164

2 Beyond Technology Transer: Protecting Human Rights in a Climate-Constrained World

None o these questions have so ar been resolved in the internationalclimate change negotiations. Although there has been plenty oexploration o technology needs and barriers to transer, therehas been precious little agreement over which needs are priorities,and what constitutes a barrier. A careul parsing o the existing

denitions o climate change and o the history o textual agreementand compromise to date will demonstrate that it is not just thatprecise articulation o the problem has proven elusive: it is also thatprecise articulation has requently been actively, and oten artully,avoided. Despite their evident value, the current UNFCCC texts dolittle to nail down the term technology transer, not, at least, insuch a way that it might acquire either legal denition or clear policyorientation.3 Rather, they have settled or a somewhat compromisedrhetorical stance that supports the notion in principle while evadingclear denition in practice.

Underlying the diculty o articulating policy in this area is therecognition that any course o action will entail costs. Developingtechnologies is costly. Producing them is costly. Making them availablewhere they are most needed is costly.4 The problem resides in part inthe complex matter o guring out what the costs will be and who shouldbear them, and this task is urther complicated by the uncertaintiesand probabilities that underlie climate science. All o these dicultiesare urthermore compounded by a long-running and undamentaldisagreement as to the proper way in which costs o this kind should be

assessed and allocated at all. For some, technological developmentand access are essentially market concerns: policy intererence o anykind insoar as it involves proactive government intervention is likelyto be counter-productive. For others, technology is a political and moralimperative too urgent (in terms both o time lost and damage) to be letto the vagaries o market orces.

Progress on technology transer over the years has depended uponthe development o a language that is amenable to both thesepositions, ocusing on capacity building, the creation o enabling

3 The principal documents on technology transer are available on the UNFCCCwebsite at: unccc.int/documentation/documents/items/3595.php.

4 Much o the technology transer literature is devoted to the question o costs and whoshould bear them. For our purposes, the principal positions are neatly summed upin John Barton, Future Climate Technology Regimes: An Assessment o the Macro-Environmental Context rom a Human Rights Perspective, Paper produced or theICHRP Project on Climate Technology Policy, presented at Geneva, July 2009. Seethe discussion o Bartons paper below.


33/164


environments and the determination o mechanisms or transer.Anyone ollowing the debate closely will know that, despite apparentterminological harmonisation, neither position has shited very much, iat all. In the main, debates have centred on IP, but as many decadeso discussion have shown, this has not proven a valuable talking

point in ensuring progress on technology transer. While progress onIP will matter i transer is to take place, the primary barrier is moreundamental: it appears to lie in opposing economic views that arerequently entrenched, dogmatic, and ultimately unsustainable, andthat have shited little over the decades. In short, technology transerhas allen victim to an age-old debate over state intervention versusmarket orces.

The result is paralysis. Insoar as climate technology diusion hastaken place in act, the contribution o the UNFCCC process has been

modest in the extreme. For the most part, North-to-South movementso climate technologies, where they have happened, have taken placethrough ordinary market transactions, with a ew such movementsdue to the Kyoto mechanisms, notably the Clean DevelopmentMechanism (CDM) and the Global Environment Facility (GEF). Theyhave been sporadic and uncoordinated and utterly inadequate tothe unique challenges o climate change. They have rarely inormedpolicy in developing countries and have had negligible impact inthe LDCs, let alone or those individuals most vulnerable to climatechange eects. Almost 20 years ater the UNFCCC was signed at Rio

in 1992, technology transer remains, in eect, a contentious termand an unclear policy objective.

a. human righTsand Technology Transfer

This report aims to respond to this challenge. Its purpose is to providea basis or determining some minimal parameters or the obligation totranser technology that can circumvent the tired opposition betweenstate and market. The report starts rom the premise, originally laid out inthe ICHRPs 2008 Rough Guide, that human rights provide a languageon which broad agreement already exists over minimal standards or


34/164


action.5 Human rights do not, o course, provide solutions or the variousdisputes that continue over technology transer, but they can arguablyhelp identiy core areas o agreement: a basis or urgent, i minimal,actions in the ace o climate imperatives that may help overcome thedeadlock, pending broader agreement on larger aims. In short, the

rationale or this claim is as ollows:

Many o the key areas identied by the Intergovernmental Panelon Climate Change (IPCC) as vulnerable to the eects o climatechange are also able to be articulated in human rights terms,which thereore provide a means o prioritising essential areas ointervention and distinguishing these rom less essential areas.

Human rights provide a common language or basic justice claims,a language that is acceptable in all o the worlds countries,

developed and developing alike, and among most social groups.Moreover, the claims articulated as human rights comprise legalobligations in most o the worlds states.

Human rights put the person at the centre o policy analysis. Whenit comes to the groups most vulnerable to climate change, a humanrights lens prompts the policy ocus to begin with the persons that

5 A burgeoning literature now exists on the relationship between human rights andclimate change. Among many examples, the ollowing stand out: Daniel Bodansky,

Climate Change and Human Rights: Unpacking the Issues, 38 Georgia Journalo International and Comparative Law 511 (2010); Elisabeth Caesans et al.,Climate Change And The Right To Food: A Comprehensive Study, ColumbiaLaw School Human Rights Institute and the Special Rapporteur on the Right toFood (2009); Edward Cameron, The Human Dimension o Global Climate Change,5 Hastings WestNorthwest Journal o Environmental Law and Policy 1 (2009);Mac Darrow, Siobhan McInerney-Lankord, Lavanya Rajamani, Human Rights andClimate Change: A Review o the International Legal Dimensions, World Bank(2011); Jessie Hohmann, Igloo as Icon: A Human Rights Approach to ClimateChange or the Inuit? 18 Transnational Law and Contemporary Problems 295(2009); John H. Knox, Climate Change and Human Rights Law, 50 VirginiaJournal o International Law163 (2009); John H. Knox, Linking Human Rights andClimate Change at the United Nations, 33 Harvard Environmental Law Review

477 (2009); Svitlana Kravchenko, Right to Carbon or Right to Lie: Human RightsApproaches to Climate Change, 9 Vanderbilt Journal o Environmental Law513(2008); Marc Limon, Human Rights and Climate Change: Constructing a Caseor Political Action, 33 Harvard Environmental Law Review439 (2009); SiobhanMcInerney-Lankord, Climate Change and Human Rights: An Introduction toLegal Issues, 33 Harvard Environmental Law Review437 (2009); Anne Parsons,Human Rights and Climate Change: Shiting the Burden to the State? 9Sustainable Development Law and Policy22 (2009). See also the contributionsto Stephen Humphreys (ed.), Human Rights and Climate Change, CambridgeUniversity Press (2009).


35/164


are themselves likely to be aected and to build policy aroundthe goal o reaching these individuals, thus connecting the local,national and international.

Human rights provide a complementary ramework o international

law to the climate change regime. The aims o both regimes overlapsubstantively, and it is helpul, thereore, to read internationalobligations in the light o both regimes.

Human rights provide a minimalarea o policy intervention, one thatis not in itsel overly onerous, but below which policy should not all.This means that they provide a foor on which policy must rest, butdo not impose a ceiling. In the Rough Guide, we reerred to humanrights as providing thresholds in setting policy.6

Human rights principles o participation and accountability,

articulated in, or example, the Aarhus Convention on publicparticipation in environmental matters, can be critical to ensuringthat basic errors are avoided in the construction o climatechange policies.

In short, human rights can provide an eective means o ocusingand prioritising areas or climate change intervention. Moreover theyprovide a means that rests on a widely accepted consensus regardingappropriate standards. A human rights ocus would suggest that it isthe most vulnerable individuals in the most vulnerable countries that

ought to be prioritised. Following the same logic, vulnerable groupsin LDCs would be prioritised, as a matter o international policy, overthose in the richer developing countries. This ocus on vulnerability long recognised as a priority category in successive IPCC reports is also indicated in the burgeoning work on climate change emerging

6 ICHRP (2008), 7: I an eect o climate change is to cause the living conditionso specic individuals to sink below these understood thresholds, it might beconsidered unacceptable (or even unlawul). A similar assessment appliesto climate policy choices no policy option would be acceptable i it entaileddeterioration in human rights protections below a certain threshold. The notion othresholds is attributable to Simon Caney. See Caney, Climate Change, HumanRights and Moral Thresholds in Stephen Humphreys (ed.), Human Rights andClimate Change, Cambridge University Press (2009).


36/164


rom the UN Human Rights system.7

In this report, we will examine these claims in more detail; however, thereport looks more closely at the obligations and actions o the apparentduty-bearers under the UNFCCC (Annex 2 countries) than the measures

available to developing countries themselves. In the remainder oChapter 1, we lay out the key terms o the technology debate in climatechange: technology transer, mitigation and adaptation, touching ontheir human rights implications. Chapter 2 provides a broader caseor technology transer based on the ethics o human rights. Chapter3 teases out the underlying causes or disagreement regarding thetechnology requirements o the UNFCCC and, without taking sides,identies a core minimum obligation that must necessarily underlie anyinterpretation o the treaty text and negotiating positions. Chapter 4addresses the various barriers to technology transer while Chapters5 and 6 put human rights to work with regard to the subject, askinghow human rights can contribute to technology policy. This is donespecically within the domains o adaptation, with particular reerenceto the right to ood, (Chapter 5) and mitigation (Chapter 6).

b. The needfor Technology Transfer

The impacts o climate change call or access to technologies, in particularin places where these impacts will wreak havoc with current livelihoods,dwelling places, ood and water sources, and economic systems. These

7 See in particular, UN Doc. A/HRC/10/61, Report o the OHCHR on the relationshipbetween climate change and human rights (15 January 2009). The ull extent oengagement o the UN Human Rights Council with climate change can be ound onthe OHCHR website at: www2.ohchr.org/english/issues/climatechange/index.htm.The main points are provided as ollows:

On 28 March 2008, the Human Rights Council adopted its rst resolution on humanrights and climate change (res. 7/23). In implementation o that resolution, the OHCHRprepared and submitted a study on the relationship between climate change andhuman rights (A/HRC/10/61) to the tenth session o the Council held in March 2009.On 25 March 2009, the Council adopted resolution 10/4 Human rights and climatechange in which it, inter alia, notes that climate change-related impacts have a

range o implications, both direct and indirect, or the eective enjoyment o humanrights ; recognizes that the eects o climate change will be elt most acutelyby those segments o the population who are already in a vulnerable situation ,recognizes that eective international cooperation to enable the ull, eective andsustained implementation o the United Nations Framework Convention on ClimateChange is important in order to support national eorts or the realization o humanrights implicated by climate change-related impacts, and arms that human rightsobligations and commitments have the potential to inorm and strengthen internationaland national policy-making in the area o climate change.


37/164


technological needs, broadly speaking, involve adaptation to climatechange. However, climate change also involves another urgent set otechnology needs to mitigate its eects. Countries everywhere mustultimately progress towards carbon-neutral economies, and in manycases they must do so while simultaneously improving conditions o

development or expanding populations. Technological needs alsoexist or energy generation and transport (and so on) in places whoseinhabitants did not themselves cause the climate problem but who alsodo not have the wherewithal to take the steps necessary to address it.

Determinations o technological needs must be based on solidpredictions about climate change eects. Mitigation needs seem morestraightorward rom this perspective, as any switch to carbon-neutraltechnologies in any domain (energy, land-use, transport, and so on)stands unequivocally to improve upon a business-as-usual (BAU)scenario. Technologies or climate change adaptation, on the otherhand, appear a little more complicated. Specic inormation aboutclimate change impacts on particular people in particular places isneeded in order to make inormed policy decisions about the viability otechnological choices.

This distinction, however, should not be overdrawn. Technology choicesregarding mitigation take place against a larger backdrop o allocationo access to greenhouse gas (GHG) emissions in what is increasinglygoing to become a zero-sum game. Climate change mitigation is a globalaair: ultimately, each choice to allow GHG emissions to take place in a

certain location or or a particular activity also involves a decision notto permit emissions to be used elsewhere or other activities. Choicesabout how this increasingly unavoidable trade-o is to be made mustshape technology decisions in the area o climate change mitigation.The same choices will also shape the development options available tothe worlds countries in a uture climate-constrained world.

Adaptation technologies, or their part, are generally dual-unction: theyare not merely means o adapting to climate-wrought changes; theyare also (generally) a means o supporting certain kinds o liestyles,cultures, or basic needs or standards in areas where these come under

pressure due to climate change. The latter goals requently overlapwith or restate development goals. Since adaptation technologies mayrequently (i not always) have a developmental component, manysuch technologies will retain a signicant utility in addressing the largerclimate change problem (that is, the pressure it places on development)even in cases where the climate science itsel remains uncertain. Wewill now examine both mitigation and adaptation in urther detail.


38/164


1. Mitigation

Mitigation choices do not merely involve the replacement o existingcarbon-based technologies with new renewable or carbon-neutraltechnologies. As we discuss in Chapter 6, in much o the world, energy

levels are grossly inadequate to the present needs o populations,and the priority is to extend energy availability rom a very low base.Calculations about the appropriate kinds o technology on which toocus global investment policies must take into account that somelow-carbon energy sources (nuclear power, or example) have aninherently limited reach (they are unlikely ever to reach beyond theircurrent usage patterns),8 whereas the eectiveness o others (solar,wind or hydropower) is highly sensitive to local geo-climatic actors.

At the same time, the locus o technological development and thelocus o its optimal deployment need not be one and the same. Viewed

as a global issue, signicant economies o scale will emerge or theexport o technology systems to those places where they are mostuseul.9 In short, climate change signicantly alters the rationale orinvestment in green and clean technologies, particularly when theglobal developmental context is also taken into account. This intuitionunderpins the standard market approach to technology developmentand diusion and continues to inorm much thinking on technologytranser. The diculty with this approach is, however, that the actualcontext in which technology transer must take place does not ull theordinary conditions or broad market diusion.

On one hand, local and national investment decisions must beinormed by and be responsive to global priorities. Among thosepriorities is the urgency o getting technologies to people who do notconstitute markets in the ordinary sense (i.e., their demand or certaintechnologies is not driven primarily by economic actors) but in a sensethat takes into account climatic actors that are (1) beyond their control;(2) causing a deterioration in quality o lie; and (3) immediate andpressing. These needs are not necessarily identiable at the local levelin the rst instance. As they derive rom global processes they can, inmany cases, be identied in advance primarily through a global, rather

than a local, lens.

8 See, in this regard, COM 781 nal, Communication rom the Commission to theEuropean Parliament, the Council, the European Economic and Social Committeeand the Committee o the Regions, Second Strategic Energy Review: An EU EnergySecurity and Solidarity Action Plan (13 November 2008).

9 For example, the potential global market or low-cost solar power technologies iswell documented.


39/164


By corollary, investment decisions taken at the local, national or rmlevel will also have impacts on a global context in which access tocarbon is necessarily interdependent. That is to say, any decision toemit GHG in one area implicitly requires reducing GHG somewhereelse. In such a situation there is no alternative to global coordination,

and even i market mechanisms are deployed to help achieve suchcoordination, the policy challenge remains to construct national- andrm-level investment and distribution decisions in the light o globalobjectives.

Climate change mitigation must be viewed in global terms becausethe broader objectives o GHG mitigation are only meaningul at globallevel. Whereas a global target must unavoidably be broken down intonational targets (a notoriously complex exercise) it is neverthelessuniversally recognised and repeatedly armed in the climate changetexts that global GHG mitigation cannot come at the expense o thedevelopment goals o the worlds developing countries. This injunctivemight be viewed as a strong constraint on any attempt to articulatea global mitigation policy. It is restated in paragraph 6 o the sharedvision or cooperative active in the Cancn Agreements:

Parties should cooperate in achieving the peakingo global and national greenhouse gas emissions assoon as possible, recognizing that the time rame or

peaking will be longer in developing countries, andbearing in mind thatsocial and economic development

and poverty eradication are the frst and overridingpriorities o developing countries and that a low-carbondevelopment strategy is indispensable to sustainabledevelopment.10

This imperative o increasingdevelopment in some parts o the worldwhile at the same time achieving overarching GHG cutsrequires that anumber o basic assumptions be ullled:

(1) Vulnerable countries (in particular) are assumed to havecontinuing access to developmental space in the near

term. Given that rising living standards are bound to lead toincreases in GHG emissions, the poorest countries must not bepenalised or near-term increases.

10 UN Doc. GE.10-70914, Drat decision [-/CP.16], Outcome o the work o the Ad HocWorking Group on Longterm Cooperative Action under the Convention [hereaterLCA COP 16], para. 6. Emphasis added.


40/164


(2) Steep reductions in emissions o developed countries musttake account o this extra developmental space in developing

countries. Given that a number o developing countries will continueto increase emissions or some time, cuts in developed countriesmust be comparatively steeper than they would otherwise be, to

take the increases elsewhere into account.11

(3) Wealthier countries can help poorer countries to develop whileat the same time contributing to reduced global GHGs over the

longer term. This is not quite the same as osetting. Developedcountries cannot eectively (solely or even substantially) meettheir own targets by contributing to reduced emissions elsewhere(rom a BAU baseline), as this would lead to signicant GHGaccounting inconsistencies. Only a tiny percentage o the GHGreductions required by developed countries will ever be easiblyavailable in developing countries.12 Nevertheless, targeted eortsto contribute to low-emission development in poorer countries mustpresumably be made to count towards the emissions budgetso both countries (where achieved reductions are quantiable,monitored, and veriable).

The third assumption is where technology transer may be expectedeventually to come to the ore as more than simply an obligation underthe international law o climate change. There, technology transer can beseen as an indispensable element o any practical solution that might standa chance o ullling the basic parameters o a global deal and achieving

the enormous global GHG cuts necessary to stave o climate change.Once GHGs are viewed as a scarce global good (i.e., once it is clear thatthe uses to which they are put are limited and ultimately exclusive) anychoice involving the reduction o GHGs or their limited increase in some(developing) contexts, will also involve having to prioritise some uses overothers. How then should such priorities be set?

Human rights ullment must gure among the basic criteria or allocatingGHG emissions priorities. There are legal, practical, political, and ultimatelyethical grounds or bringing human rights to bear in this way, and humanrights provide an optimal means o making raught decisions o this sort as

they provide minimal thresholds or the acceptable distribution o publicgoods, and do so in a language that is near universally accepted.

11 Both o these assumptions are made in the IPCCs reports and feshed out in detailand useully discussed in Baer et al. (2008), supra.

12 The arithmetic is laid out in George Monbiot, The rich can relax. We just need thepoor world to cut emissions. By 125%, The Guardian, July 13, 2009.


41/164


2. Adaptation

Adaptation to climate change until recently played a secondary role atclimate negotiations, viewed by many as a potential distraction romthe more urgent work o setting mitigation policy. However, with the

growing recognition that a certain amount o climate-induced changeis now inevitable, adaptation has moved to the heart o discussion.13 Atthe same time, technology policy too was initially considered largelyin the context o climate change mitigation only. Today, by contrast,States party to the UNFCCC have clearly asserted their view that theobjective o enhanced action on technology development and transeris to support action on mitigation and adaptation in order to achieve theull implementation o the Convention.14

These are nevertheless very dierent goals involving diverse technologiesexisting in dierent policy contexts. The key sectors or adaptation

technologies include (citing the most recently agreed text) the areaso water resources; health; agriculture and ood security; inrastructure;socioeconomic activities; terrestrial, reshwater and marine ecosystems;and coastal zones.15 This list is clearly non-exhaustive although it is broad.

Three obvious implications or technology policy jump out romthe above description. First, a broad spectrum o technologicalapparatuses potentially alls within the scope o this objective. Second,the requirement that such technologies be environmentally soundis necessarily o a dierent kind than the same requirement withregard to mitigation technologies.16 Whereas mitigation technologiesmust necessarily aim at an ideal horizon o carbon neutrality,environmentally sound technologies (ESTs) or adaptation must aim atglobal benchmarks recognising local variations. These technologiesmust refect best available environmental standards in current use,given costs, resources, and the urgency o adaptation imperatives(see Chapter 3, below). Third, the list is largely coextensive, or at leastconsonant, with the principal objectives o development policy, asound, or example, in the Millennium Development Goals.

The consonance o climate change adaptation objectives and

13 LCA COP 16, para. 2(b): Adaptation must be addressed with the same priorityas mitigation and requires appropriate institutional arrangements to enhanceadaptation action and support.

14 LCA COP 16, para. 113.

15 LCA COP 16, para. 14(a) at note 1.

16 See, or example, LCA COP 16, paras. 120 and 123.


42/164


developmental goals has long been recognised and debated. Ingeneral, the trend has been to keep the two separate despite theircongruence, or two main reasons:

(1) Financial Insoar as there has long been a quasi-ormal global

economic arrangement in which developed countries lend ordonate unds to developing countries to urther development,a undamental element o the climate change regime has beento regard unding or climate change adaptation as new andadditional to that unding.17

(2) Philosophical Perhaps a stronger reason to keep adaptationand development goals apart is that the undamental impetusor their ullment diers, at both national and global level.18

To fesh out the latter point, bilateral development aid has generally retaineda more or less explicit link to the national interests o donors, and multilateralaid has prioritised growth per se, with relatively little regard to the distributiono the benets o such growth at local level.19 By contrast, adaptationpolicy must necessarily ocus rmly on particular localproblems needingxes. The local is the driving priority; the nationalprovides the legislativeand policy context or reaching it; the globalprovides only the means andoverarching context. By contrast with international developmental policy,there is no reason that adaptation policy should benet non-locals, suchas oreign investors (a key stakeholder in development policy).

To put it another way: adaptation policy is about the survival o individuals

or communities and the maintenance o basic public standards. Unlikedevelopment policy, adaptation is not primarily about uelling growth per se.

The particular complexity o adaptation policy lies precisely in theimperative to reach those most vulnerable to the ravages o climatechange. Adaptation interventions must be grounded on a reasonablyreliable understanding o expected climate change eects, takingaccount o socioeconomic and political actors as well as physical andclimatic probabilities at local level. Compiling inormation to the degreeo sophistication necessary to provide a basis or action and to enableprioritisation between dierent actions is an immense challenge. There

17 See UNFCCC, Art. 4.3; also LCA COP 16, paras. 18 and 97. See ICHRP (2008), 2122.

18 See Stephen Humphreys, Climate Change and International Human Rights Law inRosemary Rayuse and Shirley Scott (eds), Climate Change and International Law,Edward Elgar (orthcoming 2011).

19 See, Robert Hunter Wade, Is globalization reducing poverty and inequality?, 3World Development567589 (2004).


43/164


is, however, already a good inormational basis or identiying somecommunities likely to be highly vulnerable to certain climatic eects,and this provides a basis or preliminary action.

c. definingThe Terms

In a 2000 report, an IPCC Working Group produced a working denitiono technology transer, describing it as:20

a broad set o processes covering the ows o know-how,experience and equipment or mitigating and adapting toclimate change amongst dierent stakeholders such asgovernments, private sector entities, fnancial institutions,non-governmental organizations (NGOs) and research/education institutions the broad and inclusive termtranser encompasses diusion o technologies andtechnology cooperation across and within countries. It

covers technology transer processes between developedcountries, developing countries, and countries witheconomies in transition. It comprises the process olearning to understand, utilize and replicate the technology,including the capacity to choose and adapt to localconditions and integrate it with indigenous technologies.

The group conceded that their treatment o technology transer ... ismuch broader than that in the UNFCCC or o any particular Article othat Convention, yet it is a denition that has been widely repeated,presumably, because a broad denition suits most speakers.

We will not use this broad denition here; rather, we will aim to stickwith a much narrower denition taken directly rom the Conventiontexts. We will examine this terminology in greater detail in Chapter 3.For now, it is sucient to lay out a ew basic principles. In keeping withthe accepted international law practice that treaty terms be interpretedin accordance with their ordinary meaning, in their context and inlight o the treatys object and purpose, the term technology transerwould appear to have a number o basic signications.21

20 Stephen O. Andersen et al. Technical Summary in Bert Metz, Ogunlade R Davidson,Jan-Willem Martens, Sascha N.M. van Rooijen and Laura Van Wie McGrory,Methodological and Technological Issues in Technology Transer: A Special Reporto IPCC Working Group III, Cambridge University Press (2000), 1516.

21 Vienna Convention on the Law o Treaties (VCLT), Art. 31.1 states: A treaty shall beinterpreted in good aith in accordance with the ordinary meaning to be given to theterms o the treaty in their context and in the light o its object and purpose. Chapter5 looks in more detail at the potential application o the VCLT to this set o issues.


44/164


1. Technology: hardware, know-how, training

Technology is a broad term that can, in the climate change context, bereduced to mitigation and adaptation technologies. There are caseswhere one technology can contribute both to mitigation and adaptation

(e.g., some agricultural techniques22

), but in general the distinction holds.Mitigation technologies reduce the amount o GHGs rom a given baselinein, or example, energy production, transport, waste management,urban planning and housing design. Adaptation technologies involveinterventions into the specic sectors to deal with climate-related stressesin agriculture, land reclamation or water purication, or example.

Two urther questions arise in the climate context. First, by technologydo we mean hardware (actual machinery), or do we mean somethingsoter like know-how, the capacity to construct, wield, maintain, oradapt technologies? Do we mean design? The right to reproduce certain

technologies (i.e., inormation o a kind oten guarded in patents)? As we shallsee in Chapter 4, a xation on IP in the debate is unsurprising insoar as theterm technology transer itsel has historically been conceived in relationto IP, but it is not necessarily helpul. Sticking with a narrow constructionaccording to the ordinary meaning o the terms o the text, technologycovers each o these three concerns: hardware, know-how and design.

2. Transer: something more than trade

What about transer? On one hand, the term involves the recognition thatthe optimal locus o development is not necessarily identical to its optimal

locus o deployment. Transer in this sense need not mean crossing nationalborders, but it is clear rom the context o these admonitions in the climatechange treaty texts that it does, in act, have that connotation.23 Transer inthis cross-border sense has a trade element, as it is also the central premiseo international trade relations that production and consumption neednot be collocated. Free-trade agreements consistently lead to increasingproduction o commodities ar rom their point o consumption.

Transer must also necessarily mean something more than trade.The very act that this terminology is supplementary to the trade regimedenotes that something more is at issue in dealing with climate change.

Although the text does not speciy what precisely this something moreconsists o, it does describe the particular unctions that transer is toull. UNFCCC Article 4(5) tells us that the purpose o technology transer

22 See Frances Seymour in Humphreys (ed.), Human Rights and Climate Change,CUP (2008).

23 See note 21, above, on the VCLT, advising attention to context in interpreting terms.


45/164


to developing countries is to enable them to implement the provisionso the Convention. That is, to allow developing countries to contributeto the global goal o climate mitigation and the local goal o climateadaptation while dealing with economic and social development andpoverty eradication [as their] rst and overriding priorities (UNFCCC, Art.

4.7). The unavoidable implication is that technology transer is neededbecause the ordinary unctioning o the international trade regime will notbe adequate to the technological needs o the climate change regime.

As we have already seen above, there appear to be good reasons orthe introduction o this proactive language in response to the specicexigencies o climate change. Essentially, there are two such reasons:

(1) Widespread acknowledgement that market uncertaintieslimit the availability o both mitigation and adaptation

technologies where they are most needed The demand or

these technologies in this context is not market-driven; it derivesrom climate vulnerability whose eects are exogenous andessentially independent o prevailing market conditions. Thereseems little reason to believe and every reason to doubt thatthe market will eectively channel and diuse vitally neededtechnologies to the most vulnerable persons and countries.

(2) The proound sense that the harms caused by climate changeare unjust, and that those who caused them must proactively

contribute to the well-being o those who are aected.

3. Public and private goods and actorsI technology transer is not simply synonymous with internationaltrade in technologies, to what then does it reer? The point is clearlynot a mere technology exchange between two parties; it is a transerrom one party to another. A reading o the ordinary meaning o the termsthemselves implies such proactive agency. But rom whom to whom?As discussed in Chapter 3, the texts are clear that transer involves,at a minimum, movement rom developed to developing country stateparties, or rather, rom Annex 2 to non-Annex 1 Parties. Transer involvesthe agency o states; it is a public policy intervention, but this ormulation

alone is imprecise and problematic and must be supplemented.It is imprecise because most technologies are not public goods in anysimple sense. They can be held in either public or private hands and aretoday most requently held in private hands even when they clearly servea public interest (such as energy production). This matters because wereall relevant technologies publicly owned, the implications o transerwould be relatively straightorward: it would presumably mean rom one


46/164


government or set o governments to another. The act that technologiesare held in private hands complicates any such notion o transer. Privateparties are ordinarily not directly obligated under international law. Howare the public parties to climate treaties to ull an obligation that involvesmaterial objects they do not themselves own or control?

The same problem is ound at the recipient end o the transer equation.Are technologies to be transerred intopublic or private hands? Again, thelanguage o the texts would appear to imply public-to-public transers,whereas a common approach to technological movement would ratherassume private-to-private transers. At a minimum, i the transer oclimate adaptation technologies are to ull their purpose, they mightbe expected ultimately to wind up in private hands. Indeed, one canimagine at least our possible permutations or technology transer:

(1) Annex 2 publicto non-Annex 1 private;

(2) Annex 2 privateto non-Annex 1 private;(3) Annex 2 publicto non-Annex 1 public;(4) Annex 2 privateto non-Annex 1 public.

John Barton, in a paper commissioned by the ICHRP, identied twoprincipal means by which technology transer can take place:24

One is or direct transer by the public sector, asexemplifed by global plant breeding under the auspiceso the Consultative Group on International AgriculturalResearch (CGIAR), which has traditionally made new plant

varieties directly available to the armers or agriculturalresearch organizations o developing nations.25 The otheris through private sector transer this pattern typicallyinvolves a license rom a developed world licensor whohas IP rights to a developing world licensee who thenuses the technology and pays a royalty in return And,as will be seen, there are methods o combining publicand private sector roles, some o which are likely to beespecially important in the climate change sector.26

These two existing modes o transer comprise roughly the rst and second

24 John Barton, Future

beyond technology transfer: protecting human rights in a climate-constrained world

Documents