by guest contributor Professor Da
lindyebo Shabalala, Associate Professor, University of Dayton School of Law
Multilateral Matters
An occasional blog on international developments related to intellectual property, innovation, development and public policy
Preface by Adjunct Professor Wendland
The 26th meeting of the Conference of the Parties to the United Nations Framework Convention on Climate Change (the UNFCCC) was held in Glasgow, Scotland in late October to mid-November last year. This meeting is referred to as COP 26. The UNFCCC’s COPs are both formal negotiating sessions for countries to advance their climate commitments and actions as well as forums for many, diverse constituencies and stakeholders from around the world to gather and discuss the climate crisis and possible solutions. The centrepiece of ongoing work under the auspices of the UNFCCC, and which provided the main focus of COP 26, is the so-called Paris Agreement, agreed on at COP 21 in Paris, France in 2015. The role of intellectual property (IP) protections, green innovation and technology transfer in green technologies are among the many issues included in this work. However, these issues were not discussed in any meaningful way at COP 26. To find out why I requested Professor Dalindyebo Shabalala, a South African academic currently based in the USA who follows these and other issues closely, to share his reflections on this topic. Over to you, Professor Shabalala.
Key points
On technology issues, Glasgow was a status quo COP.
A “COP” is a Conference of the Parties to the UNFCCC. COPs are held annually in cities across the world with a few (Copenhagen, Cancun, Kyoto, Paris) representing key inflection points and new agreements under the UNFCCC.
The Glasgow COP was a step forward in the implementation of the Paris COP in 2015 which had been transformational by changing the terms of mitigation and adaptation between developed and developing countries by imposing obligations on all countries.
The Paris COP closed off further development on IP issues by establishing the Technology Mechanism which has no mandate to address IP.
Major remaining issues in technology are: funding for technology access and transparency of developed country efforts to transfer technology. Glasgow moved the ball forward on these incrementally.
Introduction
A few weeks after the end of COP 26, it is a little easier to see what was actually accomplished and what remains to be done. To be fair, this was never going to be one of those transformative COPs, like Copenhagen or Paris which entirely reframed the nature and functioning of the UNFCCC. This was an ‘implementation’ COP and should be measured against how much further along the road to the goal of staying below 1.5 degrees celsius it got us. In that sense, it was not the much-feared backwards step, but neither was it a step-change. Too much still needs to be done, including on increasing the ambition of the pledges countries have made under their nationally determined contributions (NDCs), increasing and meeting current pledges for finance to address climate change in developing countries, and in implementing a new market mechanism to replace the Clean Development Mechanism.
What was not addressed and was barely mentioned was technology, and even less so was IP. Why?
Past decisions on IP and technology transfer at COP 21
The issue of IP was essentially put to bed within the UNFCCC during the Paris COP 21 in 2015, which established the new technology framework, solidifying and setting the mandate for the Technology Executive Committee (TEC) and the Climate Technology Center and Network (CTCN) to work together as the Convention’s Technology Mechanism. That framework deliberately avoids the issue of IP and places the role of providing advice and technical assistance on the CTCN, but does not provide it with a mandate to actually enable or facilitate technology cooperation between countries or implement any obligations countries may wish to have or take on. The TEC’s mandate also avoided any mention of IP and remained quite limited. To the extent that the framework addresses policies and measures concerning technology supply, the Technology Mechanism has a limited role to play and little capacity to affect the incentives of developed countries to do more. Where IP arises is in the advisory work that the CTCN provides to countries as part of its technical assistance program. However, there remains little insight into what exactly the CTCN or its members are providing to countries that are implementing technology projects. There still remains a need for this advice to be assessed more carefully so that it reflects the best available information and practices rather than ideological frameworks. This is true in particular on any advice around innovation and IP policy; R&D policies relating to the university and other research; investment policies relating to encouraging knowledge-intensive firms to locate domestically; trade policies regarding tariffs on technology imports and other such issues.
What has happened since COP 21?
In COP 26, as in almost all other COPs since the full framework was adopted in Paris, the action on technology has largely been in the reports of the Technology Mechanism to the Subsidiary Body for Scientific and Technological Advice (SBSTA) and the Subsidiary Body on Implementation (SBI) and has involved little controversy or debate. Most major NGOs have moved on to address other issues such as loss and damage, and most major developing countries have sought to address technology needs, collaboration and IP issues in other bilateral or ad hoc venues.
A major unfinished structural issue is the nature of funding for the CTCN. The framework does not address commitments on support by countries, nor does it relate these to UNFCCCC Articles 4.1c, 4.3 or 4.5 obligations on technology. The framework is limited to addressing such financing through the technology mechanism. This suggests that a key element of the framework must be the creation of a predictable financing mechanism for the CTCN which relies on donor funding rather than predictable cyclical funding from UNFCCC financial mechanisms such as the Green Climate Fund (the GCF).
Receiving and discussing the Joint Report of the TEC and CTCN[1] submitted to SBSTA and SBI, COP 26 noted and appreciated the work of the TEC but provided no further guidance. Nothing changed or was suggested in terms of the mandate or criticism in terms of the work accomplished. At most, parties were invited to “consider the key messages and recommendations of the Technology Executive Committee for 2020 and 2021 on technology policy in the following areas: technology needs assessment; technologies for averting, minimizing and addressing loss and damage in coastal zones; international collaborative research, development and demonstration; innovative approaches to stimulating the uptake of existing clean technology solutions; and endogenous capacities and technologies.”[2]
The Joint Report itself asked for no further action from the SBI and SBSTA, so to the extent that the COP took action it was consistent with the request from the TEC and CTCN. As can be expected, the document itself does not mention IP. However, in at least one of the reports and papers it has done, the TEC has addressed IP issues in terms of:
- Good practices and lessons learned on international collaborative R&D initiatives of climate technology.[3]
Nevertheless, IP remains a largely sub rosa issue at COP 26 and in the work of the TEC and CTCN occurring in specific research projects at the TEC and in advisory work and technical assistance at the CTCN.
Funding Issues
The CTCN has, through a determined effort by its Director and with some nudges from the COP[4] worked to address some of its funding issues by pulling in the GCF and other UNFCCC financial mechanisms, although those institutions have proven wary of being mandated to provide specific, ongoing, and predictable funding to the CTCN itself, something which the COP has consistently decided not to do. This has resulted in funding from the GCF and the Global Environmental Facility (the GEF) on adaptation assistance. The GCF itself has proceeded to develop its own mechanism, the Climate Innovation Facility[5] for supporting technology development and collaboration which in the near term will be focused on financing climate technology incubators and accelerators.
Technology and the Nationally Determined Contributions
A significant area, and one that may play a significant role going forward, is in assessing the technology components of NDCs, especially those from developed countries. Many developing countries have made action on their NDCs conditional on receiving technology cooperation and financial support but many developed countries have been silent. The CTCN and TEC have the issue as part of their work program but are focused on developing country NDCs and the creation of enabling environments. The issue may nevertheless arise in the process for reporting of activities for NDCs, in which developing countries are seeking consistent and transparent reporting of financial and technological support (whereas developed countries are seeking transparent reporting of mitigation action by major developing countries). COP 26 made little progress on this issue.
Final Remarks
IP in the UNFCC has almost disappeared as a significant political element of the negotiations and bargains. Technology activity since the establishment of the Technology Mechanism has focused on activities, policies and measures in developing countries, but without consistent, predictable funding streams for the activities for technology collaboration, especially significant funding at scale. In terms of these issues, COP 26 was very much a status quo outcome.
This blog was written in December 2021.
Additional readings are listed on the Multilateral Matters portal.
This blog is written exclusively in the authors’ personal capacity. Any views expressed are those of the authors alone and do not necessarily represent the views of any organization or institution.
Endnotes
[1] https://unfccc.int/documents/306935
[2] Para 9, Decision -/COP26 – https://unfccc.int/documents/310441 (accessed November 30, 2021).
[3] https://unfccc.int/ttclear/tec/rdandr (accessed November 30, 2021).
[4] Such as Decisions 13/CP.21,14/CP.22, 14/CP.24 and14/CP.25.
[5] See https://www.greenclimate.fund/document/accelerating-and-scaling-climate-innovation-how-green-climate-fund-s-approach-can-deliver (accessed November 30, 2021).