3. EQUITY IN THE PARIS AGREEMENT
3.2 Transfer of technology
159 By removing the connection between the transfer of finance and climate change obligations, the Paris Agreement substantially weakens the link that African states seek to establish between climate change action and the provision of support in order to ensure that action does not impede developmental objectives. This removal implies that, irrespective of the availability of finance from developed states, African states and their developing counterparts are expected to dip into their existing and often insufficient funds to undertake climate change action. Not only will this affect their ability to undertake climate change action, but it also reduces the pool of funds available for developmental projects.
In conclusion, even though the Paris Agreement states that developed states shall provide climate finance to their developing states, the provision of the Paris Agreement on climate finance falls short of the conception of equity advanced by African states. It is neither restorative nor distributive. It does not integrate the finance provisions with the need for development. As seen above, it fails to make adequate provision to ensure that climate change action does not impose additional financial burdens on African states. It fails to guarantee that the finance received will be new and additional to, rather than a replacement of, existing developmental funds. The Agreement places climate change responsibilities on developing state without ensuring that these obligations are tied to climate finance.
160 The advanced technological stage of the developed state parties compared to their developing state counterparts is one of the main pillars upon which African states have hinged their conception of equity. They argue that since developed state parties are more equipped with the technological innovations necessary to combat climate change, it becomes a necessary requirement of justice for this group of states to assist their developing counterparts with the technology necessary for climate action.84 There is evidence that suggests that technology transfers increase the incentives for participation in multilateral environment agreements.85 The objective of technology transfer is to identify and meet the technology needs of developing states by making climate technology innovations available in these developing states.86 As the former Executive Secretary General of the UNFCCC, Christiana Figueres noted, the global community already has the majority of the technology and capital needed to tackle climate change.87 The main challenge is with the distribution of these technologies across different nations of the world. Technological transfer, therefore, focuses on how to distribute these technologies across the world, specifically from developed to developing states.
The Intergovernmental Panel on Climate Change (IPCC) explains technology transfer as ‘a broad set of processes covering the flows of know-how, experience and equipment for mitigating and adapting to climate change amongst different stakeholders.’88 These stakeholders often consist of governments, private sector entities, financial institutions, NGOs, research institutes, etc. The transfer of technology ‘comprises the process of learning to understand, utilize, and replicate the technology, including the capacity to choose it, adapt it to local conditions, and integrate it with indigenous technologies’89
Unfortunately, this all-embracing interpretation of technology transfer by the IPCC is not widely accepted. Developed states seem to view technology transfer as the ‘exclusive sale of technology hardware, possibly accompanied by some basic operational skills, to other
84 Chukwumerije Okereke & Philip Coventry ‘Climate justice and the international regime: Before, during, and after Paris’ (2016) 7 WIRES Climate Change 845.
85 James Shephard ‘The future of technology transfer under multilateral environmental agreements’ (2007) 37(7) Environmental Law Reporter 10548.
86 Shikha Bhasin, Gabriel Blanco & Sophy Bristow et al Climate Technology in Context: Synthesis Report on Climate Technology and Development (2014) 4.
87 NPR ‘U.N. Chief: Paris Convention Represents “Turning Point”' Climate Policy’ Special Series: Heating Up 23 November 2015 available at https://www.npr.org/2015/11/23/457139688/u-n-chief-paris-convention- represents-turning-point-in-climate-policy (accessed 4 December 2015).
88 Intergovernmental Panel on Climate Change Methodological and Technological Issues in Technology Transfer (2000) 432.
89 Ibid.
161 countries.’90 Unlike the IPCC and developing states who argue for free access to climate technology, developed states reject the view that technological innovations are public goods to be made available to all states. Insisting on the intellectual property rights over these technologies, they reject their non-commercial transfer to developing states. The United States congress, for example, gave out a statement expressly declaring that the new climate agreement must not infringe upon the exercise of American intellectual property rights.91 This disagreement over what constitutes, and the extent of, technological transfer and its implications for climate change action and development in Africa has made the issue central to the application of equity within Paris Agreement.
3.2.1 Developed state parties’ obligation
Article 10(1) of the Paris Agreement states that ‘Parties share a long-term vision on the importance of fully realizing technology development and transfer in order to improve resilience to climate change and to reduce greenhouse gas emissions.’92 It acknowledges the connection between climate change resilience and the development and transfer of technology and encourages collaborations among different stakeholders of technology including governments, the private sector, financial institutions and non-governmental organisations so as to accelerate the production and distribution of these technologies.93 However, neither article 10 nor any part of the Paris Agreement creates an obligation for technology transfer. The closest that the Agreement comes to a definitive obligation to transfer technology is where it notes that parties ‘shall strengthen cooperative action on technology development and transfer.’94
Similarly, article 10(6) provides: ‘Support, including financial support, shall be provided to developing country Parties for… cooperative action on technology development and transfer at different stages of the technology cycle…’.95 However, this provision is silent on whose responsibility it is to provide this support. This is weak when compared to the obligatory
90 Heleen de Coninck & Ambuj Sagar Technology in the 2015 Paris Climate Agreement and Beyond (2015) 6.
91 Keith Maskus Differentiated Intellectual Property Regimes for Environmental and Climate Technologies (2010) 7, 29.
92 Article 10(1) of the Paris Agreement.
93 Article 10(1) of the Paris Agreement; article 6(8)(b), article 10(6) of the Paris Agreement; Zhou (n82 above) 111.
94 Article 10(2) of the Paris Agreement.
95 Article 10(6) of the Paris Agreement.
162 language used in the UNFCCC, which requires that developed states ‘shall take all practicable steps to promote, facilitate and finance’ the transfer of technology to developing state parties.96 The Paris Agreement also fails to provide any guidelines on how technological cooperation, which it recognises as important, is to be implemented. Issues such as what qualifies as technological cooperation and the parameters for such cooperation are left unresolved. As noted by Coninck and Sagar, ‘the prescriptiveness and precision of wording in Article 10 is such that no party can be held to any specific action.’97 Such loophole and vagueness by the Paris Agreement leaves room for developed state parties to avoid responsibility or limit the extent of their compliance with this provision. This has the eventual result of undermining the operationalization of the principle of equity within the Agreement.
Nonetheless, since the UNFCCC is still operational, its provisions on technology transfer remain applicable to state parties to the UNFCCC and the Paris Agreement. Under the Vienna Convention on the Law of Treaties, where not expressly repealed, the provision of an earlier treaty will apply if it is compatible with the new treaty.98 The Paris Agreement recognizes the significance of, and the necessity to strengthen cooperation on technology development and transfer. It is, therefore, not incompatible with the Paris Agreement to apply the provisions of the UNFCCC obliging developed parties to transfer climate technologies to developing states.
This will help to achieve the objectives of article 10 of the Paris Agreement.
Additionally, the Paris Agreement adopts the Technology Mechanism previously set out under the UNFCCC.99 The Agreement also creates the framework which is expected to serve as an overarching guidance for the Technology Mechanism in promoting and facilitating the development and transfer of technology.100 The Subsidiary Body for Scientific and Technological Advice was given the responsibility to elaborate on the technological framework and how it would operate.101 All these show a continued willingness to ensure international cooperation in the area of climate technology.
Article 10(6) also requires that the conference of the parties provide, in its global stocktake, information related to technological transfer given to developing states. In other words,
96 Article 4(3) of the UNFCCC.
97 de Coninck & Sagar (n90 above) 266.
98 Article 30(3) of the Vienna Convention on the Law of Treaties.
99 Article 10(3) of the Paris Agreement.
100 Article 10(4) of the Paris Agreement.
101 Para 67, Decision 1/ CP.21.
163 developed states should give an account of efforts taken to intensify the transfer of technology to other states. It is hoped that this method of accountability will serve as a push factor to ensure that developed states undertake some form of technology transfer to developing states.
In conclusion, the Paris Agreement recognises the need for global cooperation in technology development and transfer but creates no distinct obligation for developed states to transfer technology to their developing counterparts. Unlike the provision in article 9, which expressly requires the provision of climate finance by developed states, article 10 makes no similar requirement with respect to technology. Nonetheless, the provisions of the UNFCCC on the transfer of climate technology from developed to developing states remains applicable, since it is consistent and compatible with the Paris Agreement.
3.2.2 Implications for equity
As earlier mentioned, the unequal distribution of climate technologies remains one of the central issues of equity for African states. These technologies are largely situated in developed states and developing states may only get them through commercial purchase which are often expensive. The purchase of climate-friendly technology thus constitutes an additional financial burden on these states, already burdened by the need to meet their basic socio-economic needs.
Unfortunately, the Paris Agreement fails to create any clear obligation on the transfer of technologies from developed to developing states. At best, the provisions of article 10 are aspirational rather than obligatory. It recognises the need for technology development and transfer but does not obligate developed state parties to cooperate with or transfer technology to their developing counterparts. This is unlike the UNFCCC, which requires that developed states should take every possible measure to advance and fund the transfer of, and access to, environmentally sound technologies.102
The Paris Agreement thus fails to reinforce the principle of equity as regards technology transfer within international climate change law. It fails to acknowledge the position of developing states as vulnerable states given their lack of capacity and limited responsibility for global emissions and does not seek for ways to bridge the developmental gap so as to strenghten global climate change ambition. Overall, the provisions on technological transfer within the
102 Article 4(5) of the UNFCCC.
164 Paris Agreement does very little to ensure that climate change action for developing states is integrated into the need for development.