Climate Change, Intellectual Property, and the Scope of Human Rights Obligations

Author:Kavita Kapur
Position:J.D. candidate, May 2011, at American University Washington College of Law
Pages:58-63
 
CONTENT
WINTER 2011 58
INTRODUCTION
Hunger,1 displacement,2 and loss of culture and traditional
ways of life3 are the likely consequences of continuing
on the world’s current trajectory of climate change.4
These phenomena and the images of suffering that they evoke
reflect situations rich with human rights concerns. Indeed, rights
activists demanding international action to halt global warming
invoke these themes of human vulnerability as a central part of
their protests.5 However, the extent to which the threatened effects
of climate change can be understood as imposing legal obligations
within the normative framework of international human rights
law, rather than simply as rhetorical ideas of moral rights, remains
unclear.6 In January 2009, the UN Office of the High Commis-
sioner for Human Rights (“OHCHR”) published a report announc-
ing that climate change had a range of effects on human rights.7
Although it may be unclear whether those effects constitute viola-
tions of human rights law, states still have obligations to protect
those affected by climate change.8 The OHCHR report provided
minimal guidance on what those human rights obligations consist
of, thus much remains uncertain about the scope of the obligations
imposed on states by climate change. As the international com-
munity continues to wrangle with the task of delineating a strategy
for climate stabilization,9 clarifying the human rights obligations
of states may help to inform both relevant national policies and
the emerging international framework.
The move towards climate stabilization, and consequently
an alleviation of pressures on human rights, will require all states
to transform the ways in which they produce energy, especially
developing countries with substantial green house gas emis-
sions. This in turn demands adequate development, deployment,
and implementation of clean energy technologies, and diffusion
to those countries in need, including much of the developing
world.10 Because of the high-tech nature of clean energy solu-
tions, the protection of intellectual property (“IP”) rights has an
important role to play in each stage of the process.11
States seeking climate change solutions will increasingly
deal with tensions caused when human rights and IP protection
obligations conflict. States must find a way to protect human
rights while addressing climate change.12 This article attempts
to anticipate some of these tensions and to propose potential
resolutions. The climate change crisis, the clean energy solu-
tions that have emerged in response, and the role of intellectual
property protections in that process, provide a backdrop against
which the relationship between human rights and climate change
can be charted. This article begins by looking specifically at the
challenges that climate change poses to the traditional human
CLIMATE CHANGE, INTELLECTUAL PROPERTY,
AND THE SCOPE OF HUMAN RIGHTS OBLIGATIONS
by Kavita Kapur*
* Kavita Kapur is a J.D. candidate, May 2011, at American University Wash-
ington College of Law.
rights framework, as well as the sources of human rights obliga-
tions in relation to climate change. The discussion then turns to
questions of access to clean energy technology, and contrasts the
issue to the debate over access to essential medicines. Next, the
article focuses on prospective tensions with IP protections in the
context of access to clean energy technology by applying vari-
ous analytical frameworks grounded in human rights. The article
concludes by underscoring the importance of the human rights
analysis in mediating this tension and by cautioning against the
creation of fortified IP protections that do not prioritize human
rights considerations.
CLIMATE CHANGE, CLEAN ENERGY SOLUTIONS,
AND INTELLECTUAL PROPERTY
THE CLIMATE CHANGE PROBLEM
The temperature of the global climate is rising.13 Once the
subject of considerable debate,14 the fact of global warming, both
natural and anthropogenic (human-induced), is now nearly uni-
versally accepted.15 Most states in the international community
are members of the United Nations Framework Convention on
Climate Change (“UNFCCC”), an international treaty aimed at
the reduction of global warming.16 Members of the UNFCCC are
thus aligned in their commitment to combat the “change of cli-
mate which is attributed directly or indirectly to human activity
that alters the composition of the global atmosphere and which is
in addition to natural climate variability observed over comparable
time periods.”17 Significant strides made in the direction of reach-
ing international consensus on the problem of climate change are
due in part to the availability of reliable scientific information on
the causes and effects of global warming.18
In particular, the reports of the Intergovernmental Panel on
Climate Change (“IPCC”) contain assessments and projections
about climate change which are regarded as authoritative by the
international community.19 The IPCC is an intergovernmental
scientific organization established by the UN Environment Pro-
gramme and the World Meteorological Organization, currently
with 194 members, that reviews and assesses available informa-
tion on climate change in order to provide “rigorous and bal-
anced scientific information to decision makers.”20
According to the IPCC’s most recent assessment, published
in 2007, there is sufficient scientific consensus to unequivocally
establish the fact of global warming.21 In making this conclusion,
the IPCC draws upon observations of increases in global average
SUSTAINABLE DEVELOPMENT LAW & POLICY59
air and ocean temperatures, the widespread melting of snow and
ice, and the rising global average sea level.22 Additionally, the
same report asserts with more than ninety percent certainty that
most of the global warming experienced in the last fifty years is
due to anthropogenic emissions of greenhouse gases.23
Beyond establishing the reality of human-induced climate
change, the IPCC assessment also presents the current scien-
tific consensus on the effects of climate change.24 These include
changes in weather patterns, which are ninety percent certain to
result in the shrinking of snow-covered areas and of sea ice, ris-
ing sea levels and water temperatures, increased frequency of heat
waves, and heavy precipitation events.25 These weather changes
will in turn have grave consequences for agriculture, forestry, eco-
systems, water resources, human health, and society at large.26
The increased strength of consensus around the anthropo-
genic causes of climate change has inspired response efforts
aimed at reducing emissions levels. These strategies seek to mit-
igate the trend of global warming by sufficiently reducing green
house gas emissions to a level that would stabilize the rising
climate temperature.27 Although specific target emissions levels
were established in the Kyoto Protocol to the UNFCCC,28 the
shift towards a stable climate will require additional strategies
and tools in order to reach any global target levels.
CLEAN ENERGY TECHNOLOGIES AND INTELLECTUAL PROPERTY
Climate stabilization, or the emissions reductions that must
be reached globally in order to effectively combat global warm-
ing, requires a drastic overhaul of energy production systems.29
As such, there is a need for efficient clean energy technologies
that can be developed relatively quickly, deployed into action,
and diffused widely.30
Efforts to develop, deploy, and diffuse clean energy technol-
ogies have been underway for many years now, with significant
successes. There is great variation in the types of technolo-
gies available to facilitate the global shift to less carbon-reliant
energy production. Amongst the most prominent technologies
are photovoltaic (solar), biofuels, and wind technologies.31
As with any other technology industry, clean energy tech-
nologies are subject to a variety of IP protections. However, there
is considerable debate over the propriety and scope of such IP
protections since these technologies are integral to alleviating the
global stress of climate change.32 Those who generally favor IP
protections for clean energy technologies argue that incentives are
critical to drive innovation and diffusion of such technologies.33
Without IP protections, the theory goes, innovation would be
severely limited and new clean energy technologies would not be
developed.34 Opponents of IP protections for clean energy focus
on the problems of access caused by the exclusion rights afforded
to patent holders, which almost inevitably results in prohibitively
high costs.35 Thus, IP protections may render the technology unaf-
fordable for those who most desperately need it, including, in this
case, those developing countries with high energy demands.
Basic renewable energy technologies, including wind,
biofuel, and photovoltaic, are not new and have been off pat-
ent protection for a number of years.36 Instead, specific
improvements and add-on features to these existing technolo-
gies are increasingly being patented.37 The emerging modifica-
tion and adaptations are variously aimed at improving efficiency
by minimizing cost, maximizing energy production, or both.38
With solar energy, for example, new technologies attempt to
create a thin film of semiconductors that can be applied to exist-
ing surfaces, greatly reducing the costs of manufacturing solar
technology.39
While these complex technologies and processes are cen-
tral to any effort to advance climate stabilization, the impacts of
climate change on humans should not be overlooked. Scientific,
environmental, and economic dimensions have long occupied
center stage in the discourse around climate change. However,
the grave threat that climate change poses to human lives and
human well-being should be the central consideration in crafting
solutions that are responsive to the lived realities of this crisis.
HUMAN RIGHTS AND CLIMATE CHANGE
The symbolic force of framing climate change as an affront
to human rights may in itself have great utility. However, it
does not carry the same weight or consequences as violations
of states’ legal duties to guarantee the rights of individuals in
their territories. States will face little formal accountability for
breaching moral priorities that are simply phrased as a matter of
conceptual right.40 Violations of international human rights law,
on the other hand, may give rise to monitoring by an interna-
tional treaty body, scrutiny by a special rapporteur, or litigation
of individual petitions before a regional human rights insti-
tution.41 Additionally, because the legal obligations of a state
under international human rights law include those standards to
which the state has explicitly consented to be bound, violations
of human rights law are a form of a breach. Such a breach threat-
ens to call the credibility of a state into serious consideration.
CHALLENGING THE FRAMEWORK
Conceptualizing the effects of climate change as human
rights violations poses a difficult conundrum for the interna-
tional human rights law framework. At one level, there is no
explicit normative provision dealing with climate change that
would give rise to an international legal obligation.42 The uni-
versal treaties that create international human rights obligations
for states do not explicitly address the dangers posed by the cli-
mate change crisis.43 Even if we attempt to locate the human
impacts of climate change within the framework of environ-
mental protection, the key human rights treaties—the Interna-
tional Covenant on Civil and Political Rights (“ICCPR”)44 and
the International Covenant on Economic, Social, and Cultural
Rights (“ICESCR”)45—include no reference to a specific right
to a safe and healthy environment.46
The global nature of greenhouse gas emissions along with
the related transboundary impacts disrupts the traditional focus
of human rights on obligations that states have to individuals
in their territories.47 Although there are certain states who have
contributed more significantly to climate change, the effects
on their populations is often more attenuated. The most severe
impacts threaten to disrupt the lives of citizens in other parts
WINTER 2011 60
of the world.48 Indeed, the states whose citizens would be most
dramatically affected by climate change, and thus who have the
greatest stake in efforts to combat global warming, are those
states who have least contributed to global greenhouse gas emis-
sions.49 Holding these states responsible for human rights vio-
lations that they did not directly cause is untenable under the
existing framework. The traditionally territorial nature of human
rights obligations is thus inadequate to address the global cli-
mate change problem.
HUMAN RIGHTS OBLIGATIONS ARISING FROM CLIMATE
CHANGE
Pursuant to a resolution of the Human Rights Council, in
January 2009 the UN Office of the High Commissioner for
Human Rights (“OHCHR”) released a detailed analytical report
of the relationship between climate change and human rights.50
The report analyzed the impacts of climate change on various
human rights protected within the ICCPR, the ICESCR, and
other international human rights treaties.51 Specifically, the
OHCHR report detailed the significant threats that climate
change poses to the rights to life, adequate food, water, health,
adequate housing, and self-determination, while also highlight-
ing the particular impacts on highly vulnerable groups such as
women, children, and indigenous peoples.52 Additionally, the
report discussed the prospects for displacement, as well as for
conflict and related security risks, that are likely to occur as a
result of climate change along with the attendant human rights
implications for the individuals affected.53
The OHCHR report concluded that while it was unclear
whether the effects of climate change amounted to human rights
violations, states nonetheless had obligations to protect human
rights in the context of national-level measures undertaken to
address climate change.54 In addition, human rights law also
obliges states to engage in international cooperation to protect
and promote human rights. Specifically, the ICESCR carries
extraterritorial obligations that require states to
(1) refrain from interfering with the enjoyment of
human rights in other countries; (2) take measures to
prevent third parties over which they hold influence
from interfering with the enjoyment of human rights
in other countries; (3) take steps through international
assistance and cooperation, depending on the availabil-
ity of resources, to facilitate the fulfillment of human
rights in other countries, including disaster relief, emer-
gency assistance, and assistance to refugees and dis-
placed persons; and (4) ensure that human rights are
given due attention in international agreements and that
such agreements do not adversely impact upon human
rights.55
Within the framework of the ICESCR, a state is obliged
to “take steps, individually and through international assis-
tance and cooperation, especially economic and technical, to
the maximum of its available resources, with a view to achiev-
ing progressively the full realization of the rights recognized in
the present Covenant by all appropriate means.”56 The duty to
engage in international cooperative efforts aimed at the advance-
ment of economic, social, and cultural rights is in direct con-
trast to the language in the ICCPR, which expressly describes
obligations of a state to “individuals within its territory and sub-
ject to its jurisdiction.”57 The broader scope of duties under the
ICESCR than in a traditional human rights model is supported
by the General Comments of the Committee on Economic,
Social and Cultural Rights (“CESCR”) which note, inter alia,
that under the ICESCR, it is “particularly incumbent on States
parties and other actors in a position to assist to provide ‘interna-
tional assistance and cooperation, especially economic and tech-
nical’ which enable developing countries to fulfill their core and
other obligations.”58
ACCESS TO CLEAN ENERGY TECHNOLOGY
OVERVIEW OF TECHNOLOGY AND ACCESS ISSUES
Most of the clean energy technology that has been devel-
oped in response to climate change has originated in developed
countries.59 This has created an imbalance in access between
developing and developed countries, with developing countries
asserting that intellectual property regimes prevent them from
gaining access to these critical technologies.60 Although there
have been numerous attempts to study the issue, there is no con-
clusive evidence that IP protections present or do not present a
barrier to the diffusion of clean energy technologies.61 However,
there are at least some indications that the process of negotiat-
ing for access when the base technology is subject to foreign
IP protection hinders developing country industries that want to
produce new technologies or develop an adaptation to an exist-
ing technology.62 Strong IP protection in developing countries
may promote diffusion by assuring patent holders that if they
license their technology to a firm in the target country, there will
be sufficient protection against unlawful copying.63
Regardless of the lack of conclusive data on whether intel-
lectual property rights are a barrier to access to clean energy
technologies, it is irrefutable that they do influence access in a
variety of different ways.64 Despite the particular importance of
encouraging innovation in the clean energy technology indus-
try in light of the great significance that slight modifications or
adaptations can have, technology transfer has rarely focused on
supporting the development stage of climate stabilization tech-
nology.65 Instead, funding and other forms of programmatic
support have been the primary strategies for spurring innovation
in developing countries.66
Most of the technology transfer that has taken place in the
context of climate change has been in the deployment stage.67
Transfer of technology for the purposes of deployment can take
various forms. First, products that incorporate the technology
can be transferred directly to the developing country for domes-
tic use.68 A second form of transfer would be licensing produc-
tion to a company in the target country.69 Third, transfer may
simply involve capacity building for research and production
facilities in the target country.70
SUSTAINABLE DEVELOPMENT LAW & POLICY61
CONTRASTING CLEAN ENERGY AND ESSENTIAL MEDICINES
Despite the apparent parallels in the debates over access to
medicine and access to clean energy technology, there are some
acute differences between the two industries that limit the extent
to which arguments for access can be shared. One key difference
between pharmaceuticals and clean energy is the availability of
substitutes. A drug that is developed to cure or treat a particular
disease is likely to be one of the only medications that serve
that purpose; there are unlikely to be many, if any, substitutes.71
Technologies that produce clean energy, on the other hand,
range from wind and solar to hydro and nuclear.
The framework of normative instruments for facilitat-
ing access to essential medicines is much richer than that for
clean energy technologies. The Doha Declaration to the Agree-
ment on Trade-Related Aspects of Intellectual Property Rights
(“TRIPS”) formally recognized the flexibilities within the
TRIPS agreement that could be used as a basis for compulsory
licenses on essential medicines.72 The CESCR even issued a
General Comment asserting that the right to health includes an
obligation for states to promote medical research and to provide
access to affordable treatments, including essential drugs.73
The Doha Declaration does not significantly adopt a human
rights framework of analysis despite the human rights arguments
made by many within the access to medicines movement.74
Instead, it carves out of the general rule of intellectual property
protection a limited range of exceptions to apply in narrow cir-
cumstances.75 Thus, the effect of the Doha Declaration is limited
to issues directly implicating public health rather than the full
range of human rights.76
REGIME SHIFTING: HUMAN RIGHTS ANALYSIS
As the forum for the coordination of the global climate stabi-
lization framework, the UNFCCC has been the site of negotiations
over technology transfer, innovation, collaborations, and other
strategies aimed at facilitating the development, deployment, and
diffusion of clean energy technologies in the developing world.77
The various climate change conferences held under the UNFCCC
auspices have not recognized any progress towards articulating
an actionable global strategy to facilitate a developing world shift
to clean energy technologies.78 At the same time, activists, non-
governmental organizations (“NGOs”), and international organi-
zations have made repeated calls for the mainstreaming of human
rights concerns within the UNFCCC process.79 These demands
have similarly been met with little real action in the way of priori-
tizing human rights within the negotiating texts and processes.80
Accordingly, the UNFCCC regime has yet to connect human
rights to the debate over how to facilitate developing world adop-
tion and adaptation of clean energy technologies.81 Therefore, a
discursive regime shift82 should be attempted from the politicized
negotiations of the UNFCCC process to a series of human rights
analyses that seek to link the human impacts of climate change
to the question of barriers to clean energy technology. While the
flexibilities within the TRIPS Agreement that sufficed for guaran-
teeing access to medicines in the Doha Declaration may provide
a sufficient legal basis for the granting of compulsory licenses for
clean energy technologies, the alternative frameworks presented
in this section aim to conduct the analysis starting from a position
of human rights protection.83 These frameworks are centered in
the protection of human rights and are utilized to find theories of
accommodating intellectual property protections.
The starting point of a human rights analysis is necessarily
international instruments and other sources of human rights obli-
gations. This framework of analysis is in contrast to intellectual
property analyses, which take as the starting point instruments
relating to intellectual property rights.84
HUMAN RIGHTS OBLIGATIONS
Intellectual Property Rights as Human Rights
The protection of intellectual property is not simply an economic
tool designed to encourage and award innovation. Instead, the pro-
tections afforded to a patent holder may also be an iteration of human
rights. As such, intellectual property systems may be frameworks for
states to fulfill their human rights obligations. The ICESCR delin-
eates the right “authors” to “protection of moral and material inter-
ests resulting from any scientific, literary, or artistic production.”85
Rights Affected by Climate Change
In accordance with the guidance provided by the CESCR,
states are obliged to ensure the minimum essential level of each
right codified in the ICESCR.86 The duties of states derive from
the obligation to secure certain minimum standards of human
rights; thus, the duty is not fulfilled simply by adopting a par-
ticular policy or engaging in a particular transfer of technology
if that policy or transfer does not result in the realization of the
minimum value of the relevant human right.87 Rather, the duty
is satisfied when the minimum standards are guaranteed.88 This
substantive duty and its various constituent rights oblige states
to simultaneously advance development, deployment, and diffu-
sion of clean energy technology.89 The human rights obligation
includes not only the importation of technology, but also support
for local capabilities to adopt, diffuse, adapt, and develop tech-
nologies that fit within the particular circumstances of the state.
This results in changing energy production systems in a manner
sufficient to meet the core minimum standards of human rights.90
The simple transfer of technology will not provide the requisite
knowledge about how or why the technology works without this
focus on local industry and infrastructure.91 Consequently, it will
be of little utility to advancing the realization of human rights.
The ICESCR obliges developed states and other actors to
engage in international cooperation in furtherance of the realiza-
tion of human rights in developing countries. This does little to
ease the tension of how to balance the human rights of those most
directly affected by climate change with the rights to moral and
material interests of those innovators who are developing techno-
logical solutions to the energy crisis. While various human rights
are affected by climate change, the legal obligations of states to
cooperatively address climate change issues are not based on any
explicit norm. Nonetheless, various frameworks of analysis cen-
tered on human rights may prove useful in developing a sense for
how these obligations may play out vis-à-vis IP protections.
WINTER 2011 62
FRAMEWORKS OF ANALYSIS
Strict Scrutiny
Borrowing the term from U.S. Constitutional law, Marga-
ret Chon proposes a principle of substantive equality that would
require adjudicators and norm-generators to exercise a non-def-
erential standard of review when considering whether a grant
of an exclusive IP right or the denial of a limitation on the right
appears to conflict with a basic human need.92 Although moti-
vated by a development rationale, Chon’s framework is useful for
thinking about clean energy technology as a “public good” that
advances an important human need (or a series of human rights).
The framework requires the potential IP barriers to access to clean
energy technologies to be balanced against the ways in which
those technologies would help to guarantee human rights by pro-
viding access to an important public good. As Chon notes, this
is not only important for the advancement of development and
human rights, but also for the fortification of IP systems in devel-
oping countries that “cannot ‘take root’ absent a basic national
capacity, which can only be developed with a population that has
its essential needs met.”93
The extent to which IP is a barrier to the spread of clean
energy technology through the developing world is admittedly
uncertain. Yet, its recurrent mention in policy documents and
commentary on the UNFCCC process imply that it is at least
perceived as an important issue by both the technology compa-
nies who hold the IP protections and developing countries who
encounter obstacles in accessing existing clean energy technolo-
gies.94 Applying Chon’s strict scrutiny to a theoretical category
of IP protections for such technologies prioritizes the experi-
ences of the most marginalized within the process of norm set-
ting. The implications on the rights of indigenous communities,
displaced persons, and other vulnerable groups who suffer as a
result of lack of access to clean energy technologies becomes
the starting point against which all IP protection regimes must
be measured. IP regimes that pose barriers to access to clean
energy technology would be deemed excessive where such lack
of access negatively impacts human rights.
The appeal of this framework is in its stark simplicity. It
brings forward the human rights impacts of climate change that
are all too often relegated to the background of international dis-
cussions or to exceptional circumstances in analyzing the TRIPS
flexibilities. Strict scrutiny allows for the human side of climate
change to be made the center point of the discussion. However,
the problem with applying this analysis to clean energy tech-
nologies is that it is difficult to imagine any IP protections with-
out some negative impact on access and human rights. In other
words, all IP protections would seem to fail the strict scrutiny
test. As such, the utility of strict scrutiny is less as a framework
than as an important framing device that establishes the central-
ity of human rights concerns.
Human Rights Primacy
Another framework through which to understand the rela-
tionship between human rights and the protection of IP is that
of human rights primacy. Under this theory, “the protection of
the non-human rights aspects of intellectual property protection
should be subordinated to human rights obligations.”95 Human
rights primacy as a tool to mediate tensions caused by IP protec-
tion involves striking a balance between the public and private
interests in innovation with the primary objective of promoting
and protecting human rights.96 Additionally, this tool of analysis
is premised on categorizing IP protections as qualitatively differ-
ent from other human rights.97 Specifically, human rights primacy
understands IP protections as privileges assigned by the state
according to a pre-determined set of criteria.98 By contrast, human
rights are innate to an individual and are only recognized (rather
than granted) by the state.99 IP rights can be licensed or other-
wise assigned, whereas human rights are universal and inalien-
able.100 Although similar to the strict scrutiny approach advanced
by Chon, human rights primacy carries a number of alternating
theories that can be used to delineate the scope of rights.
Core Minimum
One such framework is the core minimum approach advo-
cated by both Laurence Helfer and Peter Yu in similar itera-
tions.101 The ICESCR requires that states take sufficient steps,
as determined by the resources available to that state, to realize
the obligations to protect economic, social, and cultural rights
enshrined in the Convention.102 Regardless of available resources,
however, states are obliged to guarantee certain minimum lev-
els of rights protection.103 The core minimum approach seeks to
reduce the competing categories of rights—those of the innovator
and those of the community that desire the technology—to the
“irreducible core.”104 For innovators, the core right under Article
15(1)(c) of the ICESCR is “a zone of personal autonomy in which
authors can achieve their creative potential, control their produc-
tive output, and lead independent intellectual lives.”105 Once this
irreducible core of rights has been protected, any additional pro-
tections afforded to innovators must be measured against other
human rights.106 The CESCR directs states to ensure that their IP
protection regimes “constitute no impediment to their ability to
comply with their core obligations in relation to the rights to food,
health and education, as well as to take part in cultural life and to
enjoy the benefits of scientific progress and its applications, or any
other right enshrined in the Covenant.”107 This approach takes as
a starting point that there are certain minimum human rights stan-
dards required of states, and locates intellectual property rights
as one of the tools to be utilized in advancing those standards.108
Thus, as Yu notes, under the core minimum approach
states will not violate the ICESCR if they modify or
roll back excess protection required under TRIPS, the
WIPO treaties, and other international, regional, and
bilateral treaties provided that such protection does not
have any human rights basis. They can also do so if the
protection already exceeds what is required under their
core minimum obligations and if they offer compelling
evidence of the competing demands with other human
rights obligations.109
Applying this to the situation of protections for clean energy
technologies, it appears that anything other than the protection
SUSTAINABLE DEVELOPMENT LAW & POLICY63
of an innovator’s “zone of personal autonomy” would violate a
state’s other human rights obligations under the ICESCR. As dis-
cussed above, the realization of even minimum standards of the
various rights will allow a state to not only secure clean energy
technology, but also develop domestic capacities to adapt the
technology and develop locally relevant diffusion mechanisms.
Just Remuneration
Another framework for delineating human rights obligations
in relation to IP protections for clean energy technology is the just
remuneration approach.110 Similarly based off of the primacy of
human rights, the just remuneration approach seeks to delineate
the human rights dimensions of IP protections and assess adequate
compensation for use of the protected technology.111 The under-
lying theory is that IP protections have limitations in the form of
other human rights.112 Thus, if it is within an individual’s human
rights to utilize a particular creation in advancement of those
rights, some sort of compensation would be due for any limita-
tions.113 This is different from a compulsory licensing framework,
although a national-level licensing policy could follow from this
theory.114 The just remuneration model requires that the innovator
be paid for his creation, either by the person or entity using it, or
by the state on behalf of the public (and in fulfillment of the state’s
obligations to advance human rights protections).115
Under this analysis, the IP protections extended to clean
energy technologies reflect a mix of human rights obligations and
non-human rights (economic) purposes. As with almost all IP, the
innovator of clean energy technologies possesses (human) rights
to the protection of moral or material interests in his intellectual
creations.116 However, if the utility of the technology would
serve to advance the human rights of others, then the interests of
the author are not limitless.117 In order to adequately protect the
innovator’s rights under Article 15 of the ICESCR, a state may
employ a just remuneration approach that provides appropriate
compensation in the context of a compulsory license to utilize
the technology for public welfare.118 This effectively changes the
protection from an IP form to a human rights form, by balancing
only the human rights interests of the innovator against the human
rights interests of the individual, industry, or state that is pursuing
access to the technology. Under this framework, “human rights
grant to the [entity seeking access to the technology] a compul-
sory license, as compared to a free license, and to the right holder
a right to remuneration, rather than exclusive control.”119 Thus,
those individuals or entities holding patents to important clean
energy technology could have their human rights guaranteed by
receiving adequate compensation for their technologies.
CONCLUSION
Although the existing flexibilities within the TRIPS Agree-
ment which, through the Doha Declaration, were asserted to
be sufficient for facilitating access to essential medicines may
similarly be sufficient for easing the IP protections on important
clean energy technologies, the fundamental differences between
the regimes of IP and human rights protections warrants this
human rights analysis. The TRIPS Agreement is focused on “the
promotion of innovation through the provision of commercial
incentives.”120 With its economic priorities at odds with those
of the human rights approach, which is centered on the protec-
tion and promotion of human rights, TRIPS is not an ideal or
sufficient basis upon which to build climate change solutions.
Instead, in order to keep the climate stabilization framework
grounded in the realities of the human suffering induced by
climate change, solutions to the technology access gap should
begin with a human rights analysis, even if they are eventually
realized through TRIPS flexibilities.
Beyond the mainstreaming of human rights in the climate sta-
bilization context, the human rights analyses assist in identifying
a range of interests and obligations beyond the transfer of a clean
energy technology to a developing country. Funding and program-
matic support for the development stage of clean energy technolo-
gies in developing states is a more sustainable fix for the climate
change problem. Local technology industries in developing coun-
tries would benefit more from direct access to technologies that they
could improve or adapt to their local contexts if they had increased
training in know-how and know-why. In many ways, this would
place developing countries on equal footing with developed coun-
tries and would enable the development of build-on technologies.
The human rights analysis also reflects an obligation of states
to cooperate internationally to lend their support to the realiza-
tion of human rights for individuals outside of their territories. In
the context of the UNFCCC negotiations, the intergovernmental
bloc of developing countries within the UN, known as the G77,
has advocated for the creation of a multilateral fund to buy up the
various IP instruments protecting clean energy technologies.121
As at least one commentator has stated, “[a]n appropriate
and effective ‘social contract’ needs to be developed around low
carbon and climate resilient innovation to balance public and
private interests.”122 Rather than simply transferring technol-
ogy or purchasing the IP protections to certain technologies, the
framework in which innovation can be incentivized and made
accessible needs to be revisited.
1 See Press Release, U.N. High Commissioner for Human Rights (OHCHR),
Cancun Climate Summit: UN Food Expert Calls for a “Green Marshall Plan
for Agriculture” (Nov. 29, 2010), http://www.ohchr.org/en/NewsEvents/Pages/
DisplayNews.aspx?NewsID=10565&LangID=E (last visited Jan. 28, 2011)
(describing that by 2080, 600 million additional people would be at risk of hun-
ger as a direct result of climate change and warning of the threat of fifty percent
reduction in agricultural production in some parts of South Africa).
Endnotes: Climate Change, Intellectual Property, and the Scope of
Human Rights Obligations
Endnotes: Climate Change, Intellectual Property, and the Scope of
Human Rights Obligations continued on page 95