Climate Change Law, Technology Transfer and Sustainable Development

Md Mahatab Uddin

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000402605
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book explores the possibilities and scope of facilitating innovation and transfer of the environmentally sound technologies in the Post-Paris climate era. The possibilities to be explored by the book will first focus on the roles of the climate finance and technological cooperation mechanisms in innovation and transfer of environmentally sound technologies. Secondly, the book will focus on role of the 'flexible mechanism' (i.e. indirect financial mechanisms), which has been re-introduced by the Paris Agreement as 'voluntary cooperation' or 'sustainable development' mechanism in innovation and transfer of environmentally sound technologies. Thirdly, the book will contain a comparative analysis regarding efficiency of the technology transfer mechanism under global climate regime in comparison with technology transfer mechanism that exists under other multilateral environmental agreements (MEAs).

In addition to the above, since the issues of trans-boundary technology transfer is also a matter of concern for international trade, the book will discuss to what extent the international trade related laws e.g. intellectual property laws, investment related laws governed by the World Trade Organizations (WTO) can play role in facilitating transfer of the environmentally sound technologies.

Another important aspect that this book will cover is potential roles which private sectors can play in innovating and transferring environmentally sound technologies under above-mentioned instruments of international law.

In short, this book will be based on the argument that if global climate regime and the international trade regime collaborate each other in creating enabling environment and attracting private sector to invest in the field of environmentally sound technologies, the global challenges of innovation and transfer of the environmentally sound technologies to the developing and least developed countries can be fulfilled in more efficient manner. From conceptual perspectives, discussions and analyses of the book will be made in the light of the principles of equity and common but differentiated responsibilities and respective capabilities (CBDR-RC) - two main guiding principles of the international laws on climate change.

This book will be of great interest to scholars of climate change, technology transfer, intellectual property and sustainable development. Besides, national and international level policy makers dealing with climate change and sustainable development will be greatly benefitted from this book.

1 Introduction

DOI: 10.4324/9781003056416-1

This book will look at how global sustainable development can be promoted through the transfer of environmentally sound technologies. Accordingly, this book will contain a comprehensive account of the role of international laws on climate change (e.g. United Nations Framework Convention on Climate Change (UNFCCC),¹ Kyoto Protocol,² Paris Agreement³) in innovating and transferring environmentally sound technologies as well as promoting sustainable development. The discussion and analysis will also contain a comparison between technology mechanisms established under the current global climate regime and similar provisions adopted by other multilateral environmental agreements (MEAs) (e.g. International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA),⁴ United Nations Convention to Combat Desertification (UNCCD),⁵ Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (Basel Convention),⁶ and Convention on Biological Diversity (CBD),⁷ etc.). At the same time, this book will critically examine the application of the principle of equity and the principle of common but differentiated responsibilities (CBDR) in promoting the innovation and transfer of environmentally sound technologies. In addition, this study will contain an analysis of how international trade related laws (e.g. intellectual property rights (IPRs), transboundary investment related laws) can facilitate the innovation and transfer of environmentally sound technologies. Moreover, it will also address the potential to increase the engagement of the private sector in the innovation and transfer of environmentally sound technologies. The discussions and analyses will be carried out in the light of the current legal fora of global climate change. In other words, this study will analyse the application of the principle of equity, along with the principle of CBDR, within the post-Paris international legal framework in promoting sustainable development through transferring environmentally sound technologies from developed countries to developing countries, as well as from advanced developing countries to other developing countries. A special focus will be given to the need for the transfer of environmentally sound technologies to the least developed countries (LDCs). In this connection, this book will contain a case study regarding the transfer of environmentally sound technologies to Bangladesh.

1 United Nations Framework Convention on Climate Change, May 9, 1992, 1771 U.N.T.S. 107, 1992.

2 Kyoto, 10 December 1997, 16 February 2005; reprinted at 37 ILM 22, 1998.

3 Conference of the Parties’ Twenty-first Session, U.N. Framework Convention on Climate Change, Paris Agreement, U.N. Doc. FCCC/CP/2015/L.9/Rev.1, 2015.

4 FAO Conference Res. 3/2001, Rome, November 3, 2001, in force June 29, 2004. See www.planttreaty.org.

5 Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa (Paris) June 17, 1994, in force December 26, 1996, 33 ILM 1328, 1994 (1994 Desertification Convention).

6 Convention on the Control of Transboundary Movement of Hazardous Wastes and Their Disposal (Basel), March 22, 1989, in force 1992, 28 ILM 657,1989 (1989 Basel Convention).

7 Convention on Biological Diversity (Rio de Janeiro) June 5, 1992, in force December 29, 1993, 31 ILM 822,1992 (1992 Biodiversity Convention).

In view of the above, this introductory chapter glimpses at international laws on climate change, and ideas about environmentally sound technologies, sustainable development, technology transfer, international trade related laws that concern the innovation and transfer of environmentally sound technologies and the necessity for the increased involvement of the private sector in innovating environmentally sound technologies. Thereafter, this chapter will indicate the scope and limitations of the present study which will be followed by a short overview of the whole book.

1.1 International laws on climate change

In order to hold ‘the increase in the global average temperature to well below 2 °C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5 °C above pre-industrial levels’,⁸ in 2015 all nations agreed to sign the Paris Agreement (hereinafter also referred to as the Agreement). The Agreement shows nation states’ earnest promise to combat climate change. However, the process of global consensus to deal with climate change can be traced back to the last decade of the twentieth century. In 1992, with a view to overcoming the challenges derived from climate change, all nations signed the United Nations Framework Convention on Climate Change (UNFCCC) (hereinafter also referred to as the Convention). The Convention aims to ‘stabilize greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system’.⁹ Accordingly, the Parties to the Convention agreed to fulfil their commitment on the basis of the principle of common but differentiated responsibilities. In 1997, the Convention was supplemented by the Kyoto Protocol (hereinafter also referred to as the Protocol) whose tenure was scheduled to end in 2020, as such the Paris Agreement (concluded in 2015) has become the most relevant globally agreed legal instrument on climate change issues. The aim of the Paris Agreement explicitly includes ‘enhancing the implementation of the Convention’ which includes the Convention’s objectives and aims ‘to strengthen the global response to the threat of climate change, in the context of sustainable development and efforts to eradicate poverty’.¹⁰ Hence, while the Agreement expresses its aim to hold ‘the increase in the global average temperature to well below’ a certain degree above pre-industrial levels,¹¹ the measures to be taken to fulfil this goal also require fulfilling one of the main objectives of the Convention (i.e. promotion of global sustainable development).¹²

8 Art. 2(a) of the Paris Agreement 2015.

9 Art. 2 of the UNFCCC 1992.

10 Art. 2(1) of the Paris Agreement 2015.

11 Art. 2(1)(a) of the Paris Agreement 2015.

12 Preamble to Paris Agreement 2015, Para 8; Art. 2 of the Paris Agreement 2015.

The uniqueness of the Paris Agreement 2015 lies in bringing all Parties to the Agreement under an obligation to reduce greenhouse gas emissions as per their own nationally determined contributions (NDCs).¹³ This is a major shift from the provisions of the Kyoto Protocol, which only imposed legally binding obligations on developed countries (Annex I Parties to the Convention) to reduce greenhouse gas emissions into the global atmosphere.¹⁴ Besides, as will be explained in the later stages of this book, several important plans and decisions have been made under the umbrella of the UNFCCC. Amongst these, most importantly, in 2007, the Conference of the Parties (hereinafter also referred to as the COP) to the UNFCCC agreed to work on common future commitments under the Bali Action Plan. This plan introduced four basic pillars to combat climate change: enhanced national/international action on mitigation of climate change; enhanced action on adaptation; enhanced action on technology development and technology-transfer supporting actions on mitigation and adaptation; and enhanced actions on the provision of financial resources and investment supporting mitigation, adaptation and technology cooperation.¹⁵ In December 2013, these pillars were further supported by the inclusion of an ‘international mechanism for loss and damage associated with climate change impacts’ introduced by COP 19 which took place in Warsaw, Poland.¹⁶

Considering the third pillar of the Bali Action Plan (i.e. enhanced action on technology development and technology-transfer supporting actions on mitigation and adaptation), this book considers environmentally sound technologies to be those technologies that are essential for climate change mitigation and adaptation. Adaptation to climate change refers to ‘adjustments in ecological, social, or economic systems in response to actual or expected climatic stimuli and their effects or impacts’.¹⁷ Mitigation to climate change refers to ‘efforts to ...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• List of illustrations
• Acknowledgements
• National constitutions and laws
• List of cases
• List of abbreviations
• List of agreements, treaties, conventions, protocols, directives and declarations
• Foreword
• 1. Introduction
• 2. Sustainable development and the global climate regime
• 3. Technology transfer under the global climate regime
• 4. Technology transfer under the global trade regime
• 5. Case study
• 6. Concluding remarks
• Bibliography
• Index