Strengthening IPR puts the US in breach of international obligations, which collapses climate treaty implementation globally – IP is the bottleneck

Climate change is a well-researched issue both scientifically and in terms of legal scholarship. It is widely recognized that technological solutions play an important role in climate mitigation and adaptation. Due to historical and practical reasons, relevant technologies are distributing unevenly across the world.1 To combat climate change, the wide and rapid diffusion of such technologies is in the global self-interest (Watal 2010: 14). There is evidence that technology transfers increase the incentives for participation in multinational environment agreements (MEAs) (Shephard 2007: 10548). In the context of climate change, the United Nation Framework Convention on Climate Change (UNFCCC 1992) requires industrialized countries to facilitate technology transfers to developing countries to enable them to minimize their emissions of greenhouse gas emissions (GHGs). The 2015 Paris Agreement (Paris Agreement 2015) emphasizes this once more as it further commits the Parties to strengthening cooperation on climate technology. However, in reality, state-of-the-art climate mitigation and adaptation technologies are not being automatically transferred through business-as-usual practices where traditional legal protection of intellectual property (IP) operates under the Climate regime. In the light of the growing urgency of climate risks and damage and the emerging recognition of the potential violation of human rights, it is critical to examine what is the key bottleneck to technology transfer and how this can be addressed. Hence, this article explores how IP laws can be used by climate change policymakers in the post-Paris era to enhance technology transfer. To capture the entire picture, I use a statutory perspective to summarize and analyse the UNFCCC (see Sect. 2) and the WTO (see Sect. 3), the legal setting in which climate technology transfers operate, and explore possible solutions to situate IP in the context of climate change. In the context of climate change, technology transfer is predominantly regulated by the UNFCCC. Designed as a broad framework to comprehensively deal with the climate crisis, the UNFCCC has, since 1992, endeavoured to reduce GHG emissions through a range of solutions.2 As early as 1992, the UNFCCC shed light on technology as a solution by framing technology development and transfer as an essential international assistance tool. Two core articles were laid down to facilitate technology transfer: Article 4.5 and Article 4.7. Article 4.5 is cited as a classic clause and has been placed at the heart of the technology transfer commitment system.3 It obliges the developed country Parties of the UNFCCC (Annex I countries) to commit to technology transfer in order to fulfill the principle of common but differentiated responsibilities and respective capabilities. This principle aimed at substantive equity, international solidarity and assistance. To further confirm this commitment, Article 4.7, known as the conditionality clause, made the fulfilment of the developing countries’ commitments conditional on actions taken by developed countries.4 Under this Article, the developing country Parties could suspend the Convention’s implementation if the developed country Parties did not provide technology transfer and financial assistance. Therefore, it can be said that the conditionality clause makes technology transfer absolutely indispensable for the effective implementation of climate change agreements. A violation of the provisions on technology transfer might consequently constitute a material breach and would conflict with the purpose and objective of the Convention (Verhoosel 1998: 66).