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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 245
November 19, 2011

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Self-help options for climate vulnerable countries

Professor M. Rafiqul Islam

Photo: indybay.org

In the Dhaka Ministerial Declaration of the Climate Vulnerable Forum of 14 November 2011, the most climate vulnerable countries of Asia, Africa, Pacific, the Caribbean, and Latin America have turned to their own capacity-building to combat climate change effects, moving away from a sole reliance on assistance from developed countries. This is a wise move at a time when most developed countries suffer from successive financial crises as a result of their economic mismanagement and life-style unfriendly to the environment. The above countries are particularly vulnerable, as their low-lying tropical geographies and poor economies aggravate consequences and fatalities of climate change. They bear little responsibility for greenhouse gases causing global warming but will pay a very high price if the predicted catastrophe befalls. As frontline climate victims in their fight for survival, they have limited self-help options to face the challenges. Few such options worthy of adoption may be pursued under the WTO.

Climate vulnerable countries use non-market mechanisms to access essential and important technologies. These mechanisms are used informally and involuntarily with no compensation for intellectual property rights (IPRs). They resort to predominantly imitation and reverse engineering. Non-market mechanisms of technology transfer proved effective in achieving economic development during the Industrial Revolution. Most developed countries used these mechanisms for their migration to development through industrialisation. Japan and Korea are the most topical examples in East Asia. Empirical evidence from Korea indicates that there is no positive relation between strict IPRs protection and technology transfer and that stringent IPRs protection hinders technology transfer and development of indigenous capacity to learn by doing. Weak IPRs protection in Asian newly industrialised economies helped them build up local capacities even when they were in their low-level of development. The strict requirement of IPRs protection does not allow climate vulnerable countries the freedom that developed countries once enjoyed in their technological learning and adaptation. The former must adopt a united stand for the relaxation of IPRs restrictions on the permissible ground of “public interest or good” unequivocally endorsed in the Kyoto-Protocol, Bali Action Plan, Copenhagen Accord, and TRIPs (Arts. 7 and 8). It may not be an easy option given the cut-throat and self-serving culture of trade diplomacy pursued by developed countries; but they do not have many and easy options.

The WTO TRIPs Agreement provides a flexible implementation timeline for LDCs (Art. 66.1), which will expire on 1 July 2013, except for pharmaceutical patents expiring on 1 January 2016. Climate vulnerable LDCs can take the full advantage of this extended time and use any available green technological product or process through imitation and reverse engineering, or other non-market mechanisms. The maximum utilisation of this extended time is crucial for them because environmental technologies are yet to be seriously protected in most developing countries and LDCs. This means that unfettered utilisation is legally permissible under TRIPs and there would be no obligation to seek or get permission from IPRs holders. TRIPs also provides other flexibilities, whose utility, however limited, may not be ignored in diffusing green technology to climate vulnerable countries. There are procedural and functional flexible policy spaces in TRIPS relevant to transfer climate change technologies. These flexibilities involve public interest and necessity in areas like health, education, agriculture, and biodiversity. Climate change consequences are fraught with the risk of putting innumerable human lives at stake and can come well within the purview of the public interest and necessity. Climate vulnerable countries can take the existing TRIPs flexibilities into contemplation, which may provide a detour in gaining faster access to green technology as a matter of public necessity.

If there is no further time extension, LDCs will be required to use formal market mediated mechanisms to the exclusion of non-market mechanisms of technology transfer, which could go against their interests. LDCs' failure to be TRIPs compliant may render the TRIPs dysfunctional, giving rise to unilateralism among developed countries exemplified by the TRIPs-plus. The TRIPs-plus marginalises compulsory licensing, parallel imports, imitations, and reverse engineering, the most common and cheap means of technology transfer to poor countries, which is inconsistent with TRIPs objectives (Arts. 7 and 8). LDCs are likely to fail to be TRIPs compliant at the end of the existing timeline. Under the Doha Public Health Declaration, they are not obliged to implement the TRIPs pharmaceutical patent until 1 January 2016 without prejudice to their right to seek further extensions of time (para. 7), which must be invoked. If their marginalised socio-economic plight served as a valid ground for the extension of compliance timeline in the past, there is no compelling reason to deny similar extension in the future on the ground of the climate change induced public necessity.

Patented green technologies can be used without their patent holders' consent for certain purposes under TRIPs (Arts. 30-31) through compulsory licensing, which climate vulnerable countries can issue for their relevant green technologies. Given the impending threat of global warming to these countries, a convincing claim may be made that certain green technologies are needed to mitigate the effects of or adapt to climate change, demonstrating their legitimate interests as the third party for the purpose of Article 30. Article 31 contains another possible circumvention through granting compulsory licenses for public interest justifying such a course of action. The Doha drug deal allows compulsory licenses to override TRIPs patent right to protect public health, which opens the door to potential uses of the Doha exceptions in climate change. Climate change has health implications and it is increasingly seen as a public health emergency that justifies compulsory licensing on the ground of public necessity or emergency or urgency. Climate vulnerable countries can take advantage of these developments. Climate change mitigation and adaptation technologies could provide a strong ground for issuing compulsory licenses like essential generic drugs. For the sake of saving the global environment and climate vulnerable countries, climate risks clearly constitute a global and national emergency. The exercise of this flexibility will meet with resistance by developed countries in the same way they resisted the Doha drug deal. Climate vulnerable countries must be aware of this trend and present a united stand under the waiver of Article 31.

Climate vulnerable countries are better off by issuing “government use” types of compulsory license for public and non-commercial uses. The government or its assigned national authority can designate any domestic manufacturing entity, a private company, or research institute as its agent to imitate or reverse engineer any particular patented green product or process for its wider public usage. Its advantages are that prior negotiation is not necessary with the patent holder, who is entitled to compensation according to local conditions and cannot take any legal action. So it can be issued rapidly with minimum transaction costs. Issuing compulsory licences does not necessarily mean that these countries have enough capacity to imitate or use reverse engineering domestically. They are therefore better off by importing green products and technologies from other LDCs or developing countries under compulsory licences. Such transfer can occur under the spirit of the Doha drug deal. If the public necessity-based understanding of TRIPs compulsory licensing and TRIPs objectives hold good in generic drugs trade, there is no compelling reasons why such understanding and objectives will be irrelevant in green technology transfer. Given the grave public urgency and intensity of climate change risk and the inability of climate vulnerable LDCs to develop green technology on their own, the spirit of the Doha declaration and its Paragraph 6 decision can be used by climate vulnerable LDCs.

Climate vulnerable countries can exclude identified green technologies from patentability to protect their environment and human, animal, and plant life from climate change risks (Art. 27). The predicted inundation of substantial areas in these countries may cause massive food shortages, famines, internal population displacement, and cross-border climate refugees, posing threats to their existence with spill-over destabilising effects on the maintenance of international peace and security. They should invoke the TRIPs Article 73 exception for the unauthorised use of patented green technologies “necessary for the protection of its essential security interests” and for “the maintenance of international peace and security”. The UN Secretary-General warned of this eventuality at the Security Council meeting on climate change on 20 July 2011. These countries may explore joint ownership and sharing of IPRs, patent pool, and patent commons of green technology with each other. Seeking and receiving help from the existing Eco-Patent Commons, which renders patented green technology available for combating climate risks, is a palatable option. They must actively consider and engage in South-South collaboration. The innovative capacity of China, India, South Korea, and Brazil in bio-fuels, renewable solar and wind energy, information technology, and manufacturing cannot be gainsaid. Technology alliances with these countries may well be rewarding in identifying appropriate green technologies, their rapid diffusion, and building local capacity to use them effectively at affordable costs.

Whilst the Dhaka Declaration is a step in the right direction, its signatories must resort to united actions in all possible fronts of their capacity-building. The North-South conflict of interest is now more intense than ever due to the prevailing economic climate in the west. Climate challenges deserve to be treated as global public good and responses must be based on capacity and historic obligations. Whether the future climate negotiations can go beyond the rhetoric and the North-South divide to facilitate the transition to a low-carbon intensive world through green technology dissemination and funding for climate vulnerable countries remains a daunting challenge for the UN.

The writer is Professor of Law, Macquarie University, Sydney, Australia.


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