Climate Change and Technology Transfer – Why a Human Rights Approach?

As UNFCCC[i] member countries meet in Bonn, Germany, to discuss climate change (June 17 – 27), I want to discuss an alternative technology transfer framework that addresses the stalemate in the UNFCCC. My current research, supported by the University of Dayton’s Human Rights Center, focuses on the role that a human rights approach can play in enabling technology transfer from developed to developing countries. The key argument is that a human rights approach provides a justification for developing countries to make unilateral policies, laws and other measures[ii]  on technology transfer to ensure that climate technologies are accessible to their most vulnerable citizens. It does this in two ways:

• It enables differentiation to take place, not between countries, but between vulnerable and less vulnerable populations within countries, strengthening the fairness claim by developing countries, and weakening arguments that they are just engaging in unfair economic competition, and;
• It drives the selection of technologies by providing a limiting principle that does not just ask for ALL technologies relevant to development but only those specific to the mitigation and adaptation needs of the most vulnerable populations.

Why is it necessary to provide a justification for developing countries to take unilateral action to access climate technologies? The answer is that developed countries have largely failed, both in policies and in financial support, to take the necessary action that they promised.  Why have they failed to do so? I argue that the problem is structural and that the traditional principles of international law justifying developed country obligations to developing countries (special and differential treatment) have eroded and failed in the context of climate change.

The increase in greenhouse gas emissions since the industrial revolution is attributable to developed countries such as the United States and France. This group of early industrializers were also colonial powers that dominated Africa, Asia and South America into the early post-World War II period.  The new post-WWII international framework enshrined obligations to provide special and differential (S&D)[iii] treatment for former colonies and developing countries i.e. developing countries are given more time, and financial assistance, to comply with new international economic treaties. The S&D claim is not just a fairness claim, it is also a justice claim i.e. developing countries are owed some form of restitution and aid because the developed economies now dominating the global, based their success on their exploitation.  A key part of this claim was the need to access to technologies (including patents) to enable development i.e. technology transfer. This demand for technology transfer was and continues to be resisted by developed countries as an unfair economic competition and an incursion on the legitimate intellectual property rights of their corporations.[iv]

The UNFCCC version of S&D was the concept of common but differentiated responsibilities (CBDR), under which developed countries had the burden to act first and most, as the primary contributors to greenhouse gas (GHG) emissions for all but the last two decades of the 20^th century.[v]  However, CBDR also has a transactional component. Threats to the international commons such as climate change require common action. The threats affect developed and developing countries alike but there are opportunity costs.  If a country avoids the use of a specific technology or product, or reduces its GHG emissions, such action imposes a cost on their development by forcing them to create and/or adopt different technologies and economic behaviors.  Developed countries who wanted to address climate change had to convince developing economies to give up fossil fuel dependent development pathways at a significant cost that would retard their development.  This required a carrot: financial assistance to deal with adjustment costs, and access to technology, at low, or zero cost, to enable them to reduce their own emissions and adapt to climate impacts. This bargain is reflected in Articles 4.1(c), 4.3, 4.5 and 4.7 of the UNFCCC.  However, the CBDR framework has proven to be just as unsuccessful as attempts to enable S&D treatment when it comes to technology transfer.  The transaction frame has not been successful, as the failure of developed countries to provide sufficient levels of finance and technology transfer[vi] has had few or no consequences for them. The fairness claim has largely eroded in the face of developed countries’ own domestic concerns on fiscal and adjustment costs.  The justice claim has become even more attenuated as the history of colonialism fades recedes time. The need for another framework to enable stronger climate action has prompted environmental advocates, as well as some developing countries, to look to international human rights law.

A human rights framework solves two key problems that a CBDR/Development frame does not. Firstly, it enables differentiation to take place, not between countries, but between vulnerable and less vulnerable populations within countries, thus restoring the fairness and justice claim.[vii] The UNFCCC’s development approach enables cost-benefit calculations that try to aggregate welfare and allow some to be sacrificed for the sake of the general welfare placing the burden of mitigation or adaptation on the most vulnerable. A human rights approach enables disaggregation by ensuring that the individual is the primary beneficiary of actions that include technology transfer. Thus the debate as to whom technology should be transferred moves away from State-to-State obligations and instead asks the more direct question as to who, specifically, in each country, should be the recipient of technology transfer. In being so clear about who the beneficiaries of technology transfer are, a human rights framework allows for a stronger justice claim to be made by developing countries that their unilateral action to enable access to technology is aimed at the most vulnerable populations and is not only desirable but is an obligation under human rights law.[viii]  That therefore triggers developed countries’ obligations to cooperate and refrain from retarding the fulfilment of those obligations. In addition, it strengthens the argument that developed countries must also provide assistance and support to developed countries to meet those obligations, but does not rely on faded historical rationales but on contemporary rights discourse in which developed countries continue to have a major stake.[ix]

 Secondly, in identifying the beneficiaries of action so clearly, a human rights approach allows for identification of only those specific technologies that are most important to transfer in order to address the needs of the most vulnerable.[x] The human rights framework is therefore not just a theoretical shift but helps to solve a core problem in climate technology transfer: how to limit the scope of technologies for which action is needed and justified. The human rights framework, by focusing on impacts as felt on the ground, also integrates the timing of action and enables prioritization of technologies needed to mitigate impacts.[xi] The broad scope of technologies identified under a CBDR/Development approach has meant that developed countries have found it easy to accuse developing countries of either insufficient specificity in identifying needed technologies or over-reaching and trying to engage in unfair economic competition.

Both elements reinforce the broad justice claim that can be made by developing countries. Traditionally, human rights obligations function in international law as obligations erga omnes[xii] and, by definition, are applicable law for all States in all their activities.  Human rights norms have more force than other norms given that they provide the moral foundation for the international community and concern fundamental values of the international community.[xiii]    This makes them attractive as a means of additional force in pushing for states to fulfil their obligations to their citizens.  They have not normally been viewed as a means by which states can defend themselves for taking unilateral action to meet their human rights obligations but I argue[xiv] that this is a logical extension of current practice.

The next blog post looks at how a CBDR/development framework identifies and disaggregates beneficiaries within states.

Recommended Citation: Dalindyebo Shabalala, “Climate Change and Technology Transfer – Why a Human Rights Approach?”, IP& (June 18, 2019)

[i] United Nations Framework Convention on Climate Change

[ii] Such actions could include things such as: research exceptions to patent rights; compulsory licenses for patents; anti-competition regulations against refusals to license; requiring technology transfer for foreign investments; price controls on technological products; technology transfer requirement for government bidding contracts.  For a full list of such measures see Chapter 6, D Shabalala Climate Change, Technology Transfer and Intellectual Property: Options for Action at the UNFCCC, Maastricht University, October 2014.

[iii] See e.g. https://www.wto.org/english/tratop_e/devel_e/dev_special_differential_provisions_e.htm

[iv] For more on the history see Padmashree Gehl Sampath, and Pedro Roffe, “Unpacking the International Technology Transfer Debate: Fifty Years and Beyond” (2012) ICTSD Programme on Innovation, Technology and Intellectual Property; Working Paper; International Centre for Trade and Sustainable Development, Geneva, Switzerland. See also Mohamed Bedjaoui, Towards a New International Economic Order (New York: Holmes and Meier, 1979).

[v] See Derek Bell “Global Climate Justice, Historic Emissions, and Excusable Ignorance” 94 The Monist 391 (No. 3, Morality and Climate Change) (2011).

[vi] Expert Group on Technology Transfer “Report on the review and assessment of the effectiveness of the implementation of Article 4, paragraphs 1(c) and 5, of the Convention” (FCCC/SBI/2010/INF.4, May10, 2010)

[vii] This type of differentiation was discussed in the context of the Greenhouse Development Rights Approach which although using rights language, still primarily focused on development rather than digging into the specific human rights that supported development and differentiation. See http://gdrights.org/about/

[viii] ICHRP Beyond Technology Transfer: Protecting Human Rights in a Climate-Constrained World, (International Council on Human Rights Policy: Geneva, Switzerland, 2011), p4. As the report notes it also provides for a common justice language largely missing from the UNFCCC.

[ix] As Cameron has noted, this is not a purely legal argument but seeks to reframe the political economy of the climate change discourse to render some claims more powerful in relation to others. See Edward Cameron “Human Rights and Climate Change: Moving from an Intrinsic to an Instrumental Approach” 38 Georgia Journal of International & Comparative Law 673 (2009-2010).

[x] ICHRP Beyond Technology Transfer: Protecting Human Rights in a Climate-Constrained World, (Geneva, Switzerland: International Council on Human Rights Policy, 2011), p4.

[xi] There is of course a direct link between mitigation and adaptation. The faster and more extensive GHG mitigation action takes place the lower the likely cost of action to address adaptation will be. As I note below, some impacts will be unavoidable no matter how much mitigation takes place.

[xii] Hans Morten Haugen “The Nature of Social Human Rights Treaties and Standard-Setting WTO Treaties: A Question of Hierarchy?” 76 Nordic Journal of International Law 435 (2007) pp448 – 449.

[xiii] Lorand Bartels “Article XX of GATT and the Problem of extra-territorial jurisdiction: the case of Trade measures for the Protection of Human Rights” 36(2) Journal of World Trade 353, 363 (2002).  See also Edward Cameron “Human Rights and Climate Change: Moving from an Intrinsic to an Instrumental Approach” 38 Georgia Journal of International & Comparative Law 673 (2009-2010), p697; Olivier De Schutter “The Role of Human Rights in Shaping International Regulatory Regimes” 79 Social Research 785 (No. 4, Human Rights and the Global Economy (Winter 2012)), p802.

[xiv] See D Shabalala Climate Change, Technology Transfer and Intellectual Property: Options for Action at the UNFCCC, Maastricht University, October 2014.