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.) 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.
As a starting point we should be clear that we mean international technology transfer, as in the flow of technological goods and knowledge across borders. Despite there being broad agreement as to the positive impact technology transfer can have, there is no universally recognized or legally enforceable definition as to what technology transfer is or what form it must take.
Within the realm of trade agreements, the closest definition was the United Nations Conference on Trade and Development (UNCTAD) Draft International Code of Conduct on the Transfer of Technology which defined it as “the transfer of systematic knowledge for the manufacture of a product, for the application of a process or for the rendering of a service and does not extend to the transactions involving the mere sale or mere lease of goods.” (Article 1.2,UNCTAD Draft International Code of Conduct on the Transfer of Technology) The full definition also includes:
(a) The assignment, sale and licensing of all forms of industrial property, except for trademarks, service marks and trade names when they are not part of transfer of technology transactions;
(b) The provision of know-how and technical expertise in the form of feasibility studies, plans, diagrams, models, instructions, guides, formulae, basic or detailed engineering designs, specifications and equipment for training, services involving technical advisory and managerial personnel, and personnel training;
(c) The provision of technological knowledge necessary for the installation, operation and functioning of plant and equipment, and turnkey projects;
(d) The provision of technological knowledge necessary to acquire, install and use machinery, equipment, intermediate goods and/or raw materials which have been acquired by purchase, lease or other means;
(e) The provision of technological contents of industrial and technical cooperation arrangements.
The draft code was never adopted but the definition of technology transfer that it generated remains one of the first and most influential iterations at a multinational level of what technology transfer means.