Technology assistance and transfers in international environmental law

Technology transfers play a critical role in assisting developing countries to achieve their development aspirations at a reduced environmental and social cost. Developing countries require equitable access to resources and less carbon intensive technology. Without effective cross-pollination of new technologies and practices with highly industrialised countries, these economies face a false dichotomy of needing to choose between economic development on one hand, or environmental conservation and social development on the other.
International environmental law has recognised the importance of technology assistance by creating a range of soft and hard law mechanisms. These mechanisms range from declaratory statements found in early legal instruments, to specific commitments requiring treating parties to ensure that technologies relevant to conservation are transferred to developing countries on a fair and equitable basis. The recognition of technology transfers in international environmental law can be attributed to, in part, by the mutual recognition that sustainable development and environmental issues are transboundary in nature, and a willingness for countries to abide by certain norms to address these issues.
Nevertheless, the progressive development of technology in developing countries and transfers from highly industrialised nations is by no means pervasive. Conflict with the intellectual property rights regime has long been recognised as a potential roadblock for increased adoption of green technology. This tension between equitable sharing of new environmental technologies with the protection of intellectual property is best reflected in instruments such as the Biodiversity Convention and the Nagoya Protocol, which recognises that parties must ensure that any transfer of technology is consistent with intellectual property rights (Biodiversity Convention, Article 16(2)). The Convention also mandates that parties create legislation which mutually supports both technological transfers with the protection of intellectual property rights (Article 16(5)). As this chapter will consider, effective technology assistance between developed and developing countries must adequately strike a balance between these two aims, and moreover, ensure that the latter have enough capacity to enforce intellectual property rights.
In addition, the fall of differential treatment in sustainable development discourse towards a stronger emphasis on wider governance issues has resulted has shifted attention to other non-regulatory tools to address equitable access to technology. This is primarily a push through which to enable developing countries to generate their own technological developments, and not just relying on transfers, to tackle their specific sustainable development aspirations.
Developing countries face a challenging task in creating sufficient market incentives and promoting joint implementation with the private sector to promote increased technology adoption. To this end, the state is an important actor in ensuring that there are policies in place which support technology transfers whilst reducing the risks associated for innovators. Other externalities, including the ‘brain-drain’, the current lack of scientific capacity and infrastructure, and investment in research and extension opportunities must also be implemented to complement regulatory reform in both domestic and international scales. By creating an ecosystem of laws, regulations, market incentives and policies, developing countries can achieve equitable access to new technology to address sustainable development challenges whilst realising the benefits associated with intellectual property rights protection.