UN Climate Talks Find Make-Do Solution; IP Rights Dismissed

The United Nations climate change conference closed at dawn last Saturday, with a make-do package of decisions advantageously labelled the “Cancun Agreements”. Intellectual property rights have all but disappeared from the texts as Bolivia stood alone in disagreement and was shush-gavelled.

The United Nations Framework Convention on Climate Change held its Climate Change Conference from 29 November to 10 December, in Cancun, Mexico. The conference covered the 16th Conference of the Parties (COP), the 15th session of the Ad Hoc Working Group on Further Commitment for Annex I parties under the Kyoto Protocol (AWG-KP), and the 13th session of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention (AWG-LCA).

Intellectual property rights issues relating to environmentally friendly technology transfer were mostly ignored during the whole meeting. This is a contentious issue as developed countries want IP rights to protect inventions as they claim it promotes innovation, research and development, and attracts investment, while developing countries say that IP rights stand as a barrier to technology transfer and then jeopardise climate change mitigation and adaptation in developing countries needing it the most.

IP Receding in Texts

The AWG-LCA negotiating text, discussed at the Tianjin UN climate change conference, held in China from 4-9 October, contained references to IP rights but mainly bracketed (IPW, United Nations, 29 November 2010).

The chair of AWG-LCA, Margaret Mukahanana-Sangarwe of Zimbabwe, provided a note to the Cancun conference with “possible elements of the outcome.” In the note, IP rights were just mentioned as being viewed differently by parties and it underlined the importance of continued dialogue in 2011, in the light of technology innovation and access.

In the outcome of the work of the AWG-LCA [pdf], adopted on Saturday, the mention of IP rights disappeared. Paragraph 117 of the document mentions the establishment of a Technology Mechanism, which would include a Technology Executive Committee. Paragraph 119 indicates that this committee should further implement the technology transfer framework described in Article 4, paragraph 5 of the Convention [pdf]. The latter calls for developed countries to take “all practicable steps to promote, facilitate and finance, as appropriate, the transfer of, or access to, environmentally sound technologies and know-how to other parties, particularly developing country parties.”

Bolivia Stands Alone on IP

During the plenary meeting on the AWG-LCA, in the early hours of Saturday, Bolivian Ambassador Pablo Solon rejected the text as inadequate for several reasons, including the absence of reference to IP rights in the text. In most cases, Solon said, over 70 or 80 percent of patents on clean technologies are in the hands of developed countries. How can it be, he asked, that the Technology Executive Committee would not consider IP issues when this is a repeated request from developing countries?

But despite the firm rejection of Bolivia, COP President Patricia Espinosa, adopted the text, encouraged by countries such as Colombia who said that “flexibility was the only way to reach consensus”, that the absence of an agreement would not prevent the effects of climate change, and the right of veto should not be given to one country.

The same scenario was repeated during the plenary, which adopted the Cancun agreements. Espinosa disregarded Bolivia’s objection and said the rule of consensus did not mean complete unanimity. She characterised the Cancun agreements as a new era of climate change.

A source close to the Bolivian delegation told Intellectual Property Watch that “Bolivia consistently asked for IP to be included in the sections of text on technology transfer…but it was not done in Cancun.”

In a press briefing, Bolivia later denounced what it called a “Copenhagen Accord II” without consensus, and said “a so-called victory for multilateralism is really a victory for the rich nations who bullied and cajoled other nations into accepting a deal on their terms. An accord where only the powerful win is not a negotiation, it is an imposition.”

IP issues were very polarised, and NGOs pushed for discussions to be undertaken in the AWG-LCA concerning the barriers for diffusion and the deployment of climate friendly technologies, according to Tirthankar Mandal, Climate Action Network technology co-chair. The Umbrella Group, was reluctant to discuss IP rights under the UNFCCC, he told Intellectual Property Watch. According to the UNFCCC, the Umbrella Group is a “loose coalition of non-EU developed countries which formed following the adoption of the Kyoto Protocol.” There is no formal list, but the group usually comprises Australia, Canada, Iceland, Japan, New Zealand, Norway, Russia, Ukraine and the US.

The International Chamber of Commerce (ICC) hailed the outcome of the conference and said “the Cancun agreement provides a strong signal that governments have heard the private sector will be needed, including the elaboration of the technology mechanism….” ICC said its work during the conference demonstrated “the vital role of business as a source for technological innovation and dissemination, as well as for investments.”

The 17th session of the COP and the 17th session of the COP serving as the meeting of the Parties to the Kyoto Protocol will take place in Durban, South Africa, from 28 November to 9 December 2011.