Can we negotiate IP in the Paris 2015 Climate Negotiations?

The UNFCCC and its relationship to the WTO is a special case of the broader relationship between trade and the environment. Generally, this has been addressed from the viewpoint of the trading system and the extent to which the trading system needs to adjust to accommodate environmental needs.  In the climate negotiations, a lot of emphasis has been placed on the UNFCCC and any agreement not interfering with trade issues, or not addressing trade rules.  This has been extended to the issue of intellectual property, a relative latecomer to the range of trade rules.  Thus, the argument goes, intellectual property is a trade issue which the UNFCCC and subsequent protocols should not address, as they properly should be addressed in trade venues. I don’t intend to reiterate the arguments counter to this proposition. (For that see Chapter 7 of my book[1].) I just want to address the specific issue of whether there are rules in the UNFCCC itself that prevent countries from addressing IP in the UNFCCC or in the pursuit of implementing their obligations under the UNFCCC.

There is little indication within the UNFCCC of what the relationship to the WTO should be.   The preamble affirms ‘that responses to climate change should be coordinated with social and economic development in an integrated manner with a view to avoiding adverse impacts on the latter, taking into full account the legitimate priority needs of developing countries for the achievement of sustained economic growth and the eradication of poverty.’

Article 3.5 on principles notes:

The Parties should cooperate to promote a supportive and open international economic system that would lead to sustainable economic growth and development in all Parties, particularly developing country Parties, thus enabling them better to address the problems of climate change. Measures taken to combat climate change, including unilateral ones, should not constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on international trade.

This provision suggests that the UNFCCC asks Parties to act in this manner in implementing their obligations under the UNFCCC and international economic law.  The test that they impose here is one that imports language from the chapeau of Article XX of the GATT which embodies the General Exceptions clause to trade obligations specifically.  In general, this is language that developing countries sought  to ensure that their goods would not be excluded from developed country markets when those countries implemented their climate obligations.  To the extent that measures affecting trade in goods are used to address climate change, this principle provides interpretive guidance from the UNFCCC as to how the UNFCCC views the relationship between actions aimed at achieving climate aims and those actions as they relate to rules on trade in goods.  That language does not restrict the UNFCCC from addressing trade issues but it does provide a rule for the boundary between GATT issues and UNFCCC issues.

The language does not, however, translate well into the TRIPS arena. TRIPS provisions on exceptions and limitations to patents are primarily to be viewed through the lens of TRIPS Articles 7 and 8 on objectives and principles, and Article 13, 30 on exceptions and Article 31 on compulsory licensing.  That language in the GATT does not apply to the TRIPS Agreement.   Within the TRIPS Agreement there is no analogous ‘disguised restriction on international trade’ language or principle.   Thus there is no language in the UNFCCC that legally restricts parties from addressing intellectual property or from taking IP-related actions in order to implement the UNFCCC. The only place where such restrictions exist are in the TRIPS Agreement and other TRIPS-plus obligations in bilateral and regional free trade agreements.

The contention that intellectual property should not be addressed in the current Paris climate negotiations is thus a purely political claim that relies on the idea that only one forum can address specific issues, despite the fact that the WTO regime clearly addresses itself to health, human rights and environmental practices that have any effect on trade.  It seems only appropriate for the climate regime to address any trade and/or intellectual property issues that affect the implementation of climate change obligations and goals.  Even absent some agreement or language on IP there is clear language within the UNFCCC on who should bear the initial costs of action. The technology transfer and financial support obligations of the UNFCCC fall squarely on the shoulders of developed countries.  This suggests, at a minimum, that the costs of paying for IP licenses should be financially supported (if not at full costs, at incremental costs) by developed countries, in the absence of other measures to ensure that technology transfer takes place.  Financing is key to addressing technology transfer in the UNFCCC and financing of IP may be the best way to defuse demands for changes to international IP rules. That, however, cannot happen if developed countries continue to play a double game: insisting that the UNFCCC cannot address trade or IP issues while simultaneously preventing the introduction of climate issues in the WTO and other international economic law fora. This stance is unsustainable and one that should be abandoned in the negotiations in Paris 2015.

[1] See Chapter 7, Shabalala D, Climate Change, Technology Transfer and Intellectual Property: Options for Action at the UNFCCC Maastricht University, 2014. Available at:


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