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Mahatab Uddin & Saiful Karim, "International Law and South-South Cooperation for Innovation and Transfer of Green Technologies" (2020) 52:3 Geo Wash Int'l L Rev 355. AGLC 4th ed. Mahatab Uddin and Saiful Karim, 'International Law and South-South Cooperation for Innovation and Transfer of Green Technologies' (2020) 52(3) George Washington International Law Review 355. MLA 8th ed. Uddin, Mahatab, and Saiful Karim. "International Law and South-South Cooperation for Innovation and Transfer of Green Technologies." George Washington International Law Review, vol. 52, no. 3, 2020, p. 355-392. HeinOnline. OSCOLA 4th ed. Mahatab Uddin and Saiful Karim, 'International Law and South-South Cooperation for Innovation and Transfer of Green Technologies' (2020) 52 Geo Wash Int'l L Rev 355 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at https://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your license, please use: Copyright Information INTERNATIONAL LAW AND SOUTH-SOUTH COOPERATION FOR INNOVATION AND TRANSFER OF GREEN TECHNOLOGIES MD. MAHATAB UDDIN* & MD. SAIFUL KARIM** ABSTRACT This Article examines the role of internationallaw in the innovation and transfer of green technologies in the context of South-South cooperation. It argues that collaborationmerely between developed and developing countries is insufficient and that cooperation among advanceddeveloping and developing countries is essential. To ensure wide innovation and transfer of green technologies, international laws dealing with climate change and international trade related issues must play major roles. As such, this Article demonstrates how these branches of internationallaw can facilitate South-South cooperation in the innovation and transfer of green technologies and proposes methods for creating a favorable environment for innovation and transfer in light of the global climate regimes and trade-related legalframeworks. I. INTRODUCTION Undoubtedly, climate change is a "common concern of humankind."1 Without innovation and widespread adoption of environmentally sound, or green, technologies, adapting to climate change and reaching long-term targets for effective climatechange mitigation is nearly impossible. 2 Also known as clean technologies, green technologies are generally understood as technologies that have less negative environmental effects on the planet in that they create less greenhouse gas (GHG) emissions and require * Advocate of the Supreme Court of Bangladesh and visiting researcher of the International Centre for Climate Change and Development (ICCCAD), Bangladesh. ** Associate Professor and the Leader of the Ocean Governance Research Group (OGRG) at the Faculty of Law, Queensland University of Technology (QUT). 1. United Nations Framework Convention on Climate Change, pmbl., May 9, 1992, 1771 U.N.T.S. 107 [hereinafter UNFCCC]; Conference of the Parties to the U.N. Framework Convention on Climate Change, Adoption of the Paris Agreement, pmbl., U.N. Doc. FCCC/CP/2015/L.9/Rev.1 (Dec. 12, 2015) [hereinafter The Paris Agreement]. 2. See Bjorn A. Sanden & Christian Azar, Near-Term Technology Policies for Long-Term Climate Targets: Economy Wide Versus Technology Specific Approaches, 33 ENERGY POL'Y 1557, 1557 (2005). 355 & 356 fewer natural The Geo. Wash. Int'l L. Rev. resources compared with more [Vol. 52 conventional technologies. 3 Notably, the 2015 Paris Agreement recognizes "the need for an effective and progressive response to the urgent threat of climate change on the basis of the best available scientific knowledge" 4 i.e., newly innovated or latest green technologies. These technologies are mainly dominated by developed countries and only a few nations currently play a major role in both innovation and develop- ment.5 Not all countries are equally capable of innovating or purchasing the necessary green technology, and transfer of green technology occurs primarily among more advanced regions. 6 Hence, both innovation of green technologies and transfer to developing or least-developed countries are crucial in dealing with global climate change. 7 For the last three decades, the international legal regime on climate change has promoted this movement, but efforts have yet to bring any satisfactory outcome. To facilitate the innovation and transfer process, innovating firms and entities are required to follow two key steps: (1) invent green technology based on the new processes or products available; and (2) adopt, diffuse, and transfer newly invented technolo- 3. See Glossary of Statistical Terms: Clean Technology, ORG. FOR ECON. COOPERATION [https:// DEv. (July 6, 2005), https://stats.oecd.org/glossary/detail.asp?ID=2988 perma.cc/J8BT-AKZX]. Agenda 21 defines environmentally sound technologies as technologies that "protect the environment, are less polluting, use all resources in a more sustainable manner, recycle more of their wastes and products,... handle residual wastes in a more acceptable manner than the technologies for which they were substitutes," and are "compatible with nationally determined socio-economic, cultural and environmental priorities." U.N. Div. for Sustainable Dev., United Nations Conference on Environment and Development: Agenda 21, 11 34.1, 34.3 (June 1992), https://sustainabledevelopment.un.org/content/documents/Agenda2l.pdf [https://perma.cc/NP9U-VUCK] [hereinafter UNCED]. The definition primarily refers to technologies that are essential to climate change mitigation. This Article refers to climate change mitigation technologies as well as technologies required for climate change adaptation as "green technology." "Green technology" in this Article also includes "environmental goods and services" as used in World Trade Organization (WTO) Agreements. See U.N. Conference on Trade Dev., WTO Negotiations on Environmental Goods and Services: A Potential Contribution to the Millennium Development Goals, at 4-5, U.N. Doc. UNCTAD/DITC/TED/2008/4 (2009). 4. The Paris Agreement, supra note 1, pmbl. 5. Antoine Dechezlepretre et al., Invention and Transfer of Climate Change-Mitigation Technologies: A Global Analysis, 5 REv. ENVTL. ECON. & PoL'Y 109, 115-16 (2011). 6. Id. at 116, 121-22. 7. Travis Lybbert & Daniel Sumner, Agncultural Technologies for Climate Change in Developing Countries:Policy Optionsfor Innovation and Technology Diffusion, 37 FooD PoL'Y 114, 123 (2012). 20201] South-South Cooperation for Innovation 357 gies. 8 Of the innovation and diffusion stages in green-technology development, the innovation stage of research and development (R&D) requires public support to empower research groups.9 At the diffusion stage of technological development, private firms require institutional support and favorable policy arrangements.1 0 In this regard, a study conducted by Suzuki suggests addressing four key areas for innovation and transfer of green technologies: (1) facilitate R&D during the innovation phase; (2) address intel- lectual property rights (IPR) issues; (3) arrange financial support; and (4) create an enabling environment for proper diffusion and transfer of newly innovated technologies. 1 Technology transfer is not limited to merely transfer of any technological products; rather, it is a broader idea that also includes transfer of the knowledge and know-how associated with technology. Besides, technology itself is sometimes an intangible "knowhow" or "knowledge" rather than a tangible equipment or product. A report published in 2000 by the Intergovernmental Panel on Climate Change (IPCC) describes technology transfer as "a broad set of processes covering the flows of know-how, experience and equipment for mitigating and adapting to climate change amongst different stakeholders such as governments, private sector entities, financial institutions, non-governmental organizations (NGOs) and research/education institutions."1 2 As such, this Article adopts IPCC's description as the standard definition for "technology transfer," and considers both climate change adaptation and mitigationrelated technologies as green technology. This Article further examines the extent to which the post-Paris global climate regime and other related international legal frameworks can address the four abovementioned areas to facilitate innovation and transfer of green technologies. Part II of this Article addresses trends in innovation and transfer of green technologies: Part II.A discusses North-South, South-South, and Triangular Cooperation; Part II.B discusses factors that influence the 8. S. Sinan Erzurumlu & Yaman Omer Erzurumlu, Development and Deployment Drivers of Clean Technology Innovations, 24J. HIGH TECH. MGMT. RES. 100, 101 (2013). 9. Masachika Suzuki, Identifying Roles of InternationalInstitutions in Clean Energy Technology Innovation and Diffusion in the Developing Countries: Matching Barriers with Roles of the Institutions, 98 J. CLEANER PRODUCTION 229, 230 (2015). 10. Id. 11. Id. 12. BERT METZ ET AL., METHODOLOGICAL AND TECHNOLOGICAL ISSUES IN TECHNOLOGY TRANSFER: A SPECIAL REPORT OF THE INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE (2000). 3 & 358 The Geo. Wash. Int'l L. Rev. [Vol. 52 innovation and diffusion of technology; and Part II.C outlines the facilitators and barriers of technology transfer. Part III examines the interaction among South-South cooperation, technology trans- fer, and international laws: Part III.A discusses international laws on climate change for transfer of green technologies; Part III.B addresses international laws on climate change for South-South cooperation; and Part III.C examines international trade regimes that cover intellectual property laws and trade related laws. Finally, Part IV includes recommendations for creating enabling environments for research and development as well as transfer of green technologies. In particular, the Article focuses on possibilities of enhanced South-South cooperation-that is, collaboration among developing countries or among advanced-developing and other developing countries in the development, diffusion, and transfer of green technologies.1 3 The discussion and analysis are presented in the context of current international laws on climate change governed by the United Nations Framework Convention on Climate Change (UNFCCC) and its subsequent legal instruments (e.g., the Paris Agreement), as well as global trade-related laws governed by the World Trade Organization (WTO) 1 4 (e.g., intellectual property laws and investment-related laws). 13. The United Nations Framework Convention on Climate Change (UNFCCC) has divided its Parties into three groups: Annex I, Annex II, and non-Annex I Parties. Parties Observers, UNITED NATIONS CUMATE CHANGE, https://unfccc.int/parties-observers [https:// perma.cc/FUF5-BJXP] (last visited Aug. 4, 2020). Annex I Parties are countries that were the then-members of the Organization for Economic Co-operation and Development (OECD), and countries whose economies were in transition in 1994 (i.e., countries that were members of the former Soviet Union). Id. Annex II Parties are countries that were members of the OECD at the time the UNFCCC was concluded (i.e., 1994). See id. Although under the Paris Agreement all Parties are obligated to reduce their annual greenhouse gas (GHG) emissions, as per their nationally determined contribution, under the UNFCCC only Annex I Parties must actively endeavor to reduce annual GHG emissions. See UNFCCC, supra note 1, art. 4(2)(a); The Paris Agreement, supra note 1, art. 4(19). Furthermore, only Annex II Parties are responsible for engaging in financial and technological cooperation with other countries under the UNFCCC. UNFCCC, supra note 1, arts. 4(3), 4(5), 4(7). Meanwhile, the Paris Agreement remains silent as to how division should take place. Hence, this Article considers UNFCCC's Annex II Parties as industrialized and developed countries in the Global North, and non-Annex I Parties as developing countries in the Global South. 14. Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, 7 1867 U.N.T.S. 154, https://treaties.un.org/doc/Publication/UNTS/Volume%20186 /vol ume-1867-A-31874-English.pdf [https://perma.cc/T7B6-6K95]. South-South Cooperationfor Innovation 2020 ] II. 359 TRENDS IN INNOVATION AND TRANSFER OF GREEN TECHNOLOGIES A. North-South, South-South, and TriangularCooperation The notion of "North-South" generally refers to a geographical division of countries. The term "North" represents industrialized and developed countries of North America and Europe, along with Australia, New Zealand, and Japan, whereas the term "South" represents developing and least-developed countries of Asia, Africa, and Latin America. 15 Accordingly, "North-North" refers to developmental cooperation among developed countries while "NorthSouth" refers to that among industrialized developed countries and all other remaining countries, covering all developing nations including advanced-developing and least-developed countries. 16 As opposed to North-South cooperation, "South-South" coopera- tion refers to cooperation among developing countries, including advanced-developing countries and least-developed countries.1 7 The United Nations' (U.N.) defines South-South cooperation as: [A] process whereby two or more developing countries pursue their individual and/or shared national capacity development objectives through exchanges of knowledge, skills, resources and technical know-how, and through regional and interregional collective actions, including partnerships involving governments, regional organizations, civil society, academia and the private sector, for their individual and/or mutual benefit within and across regions. 18 Fred Binka, North-South Research Collaborations:A Move Towards a True Partnership?, & INT'L HEALTH 207, 207 (2005). 16. Id. 17. Developed countries are those countries listed in Annex II of the UNFCCC. See UNFCCC, supra note 1, annex II. "Developing countries" are countries which are not listed in Annex I and Annex II of the UNFCCC. See id., annexes I, II. This article considers countries which are gradually becoming major economy including four BRIC countriesBrazil, Russia, India and China-as "advanced developing countries." However, our classification is not entirely based on economic development. "Least developed countries (LDCs) are low-income countries confronting severe structural impediments to sustainable development. They are highly vulnerable to economic and environmental shocks and have low levels of human assets. There are currently 47 countries on the list of LDCs." Least Developed Countries (LDCs), UNITED NATIONS, https://www.un.org/development/desa/ dpad/least-developed-country-category.html [https://perma.cc/A5RD-T8KE] (last visited Nov. 20, 2020). 18. BRICS Countries, Stronger Together, INT'L TRAINING CTR., https://www.itcilo.org/en/ supporting-initiatives/brics/un-definition-f-ssc [https://perma.cc/MT39-5wXA] (last visited Aug. 4, 2020). 15. 10 TROPICAL MED. The Geo. Wash. Int'l L. Rev. 360 [Vol. 52 It is important to note that South-South cooperation is considered "not a substitute for, but rather a complement to North-South cooperation."1 9 Occasionally, developmental cooperation in the South requires financial or technical assistance or expertise from comparatively advanced-developing countries in the North. In this scenario, the nature of cooperation involves a triangular dimension, which, according to the United Nations, refers to "Southern-driven part- nerships between two or more developing countries supported by a developed country(ies) or multilateral organization(s) to imple- ment development cooperation programmes and projects." 20 B. Factors Influencing Innovation and Diffusion of Technology Factors that influence the innovation and diffusion of technological innovation primarily include operation drivers, market drivers, and regulatory drivers. 21 First, operation drivers enhance or maximize resources of the firms involved in innovation and deployment of newly invented green technology in a manner that ensures the inventing firm's business profit. 22 Second, market drivers enhance market demand for the invented technology, thereby facilitating consumers' adoption of the technology. 23 Finally, regulatory drivers concern state laws and regulations, which can create or remove economic uncertainty for innovating firms. 24 Regulatory drivers include, but are not limited to, price settings, financial practice, technology standard and quality assurance, marketing and distribution laws, labor laws, and accounting and tax laws. 25 In fact, regulatory drivers have direct and indirect influence over the two other drivers of innovation. Hence, law and regulatory affairs arguably play a substantial role in facilitating the innovation of green technology. 26 Although the cost of fossil fuels influenced the extent of greentechnology innovation until 1990, after this period various newly 19. Id. 20. United Nations Dev. Programme, Frequently Asked Questions: South-South and Triangular Cooperation (2014), https://www.undp.org/content/dam/undp/library/Pov erty%20Reduction/Development%20Cooperation%20and%20Finance/SSCFAQ% 20vl.pdf [https://perma.cc/PA4H-YH7N]. 21. Erzurumlu & Erzurumlu, supra note 8, at 101. 22. Id. at 102. 23. Id. 24. Id. 25. Id. at 104. 26. Id. 20201] South-South Cooperationfor Innovation 361 adopted environmental laws and policies began to significantly 27 For this reaimpact the growth of green-technology innovation. son, the post-Paris Agreement climate regime will have an immense effect on innovation globally, particularly because the Paris Agreement demands all nations to contribute to reducing GHG emission. 28 Consequently, countries will be required to adopt and implement various environmental policies at regional, national, and local levels. The most challenging task following innovation is ensuring that the green technologies are adequately transferred to countries with the most need. A study conducted by Dechezlepretre et al. shows that most green technologies are innovated in the Global North, 29 For examwhich is mainly comprised of industrialized nations. for account alone ple, Japan, Germany, and the United States more than sixty percent of green-technology innovations related to climate-change mitigation. 30 The study also found that among the advanced-developing nations, Korea, Russia, and China made sub31 stantial contributions in the innovation race. While the Paris Agreement may accelerate green-technology advancements in developed and advanced-developing countries at a national level, transfer of green technologies to marginal economies will mostly depend on due cooperation among the innovators and the recipient nations. 32 Based on the global state of technological transfers from 2000 to 2005, Dechezlepretre et al. demonstrated that 77% of total transfers occurred among industrialized developed countries, 22% occurred from developed to developing 33 countries, and only 1% occurred among developing countries. The irregular distribution or transfer of green technologies among developing countries is arguably a result of those regions' under- privileged innovation systems. 34 Thus, assisting developing nations 27. 28. 29. 30. 31. 32. Dechezlepretre et al., supra note 5, at 118-19. See The Paris Agreement, supra note 1, arts. 2(1), 3. Dechezlepretre et al., supra note 5, at 115. Id. at 124. Id. MnuA A. PIGATO ET AL., TECHNOLOGY TRANSFER AND INNOVATION FOR LOw-CARBON DEVELOPMENT 19 (2020). 33. Dechezlepretre et al., supra note 5, at 122. 34. Chen Zhou, Can Intellectual Property Rights Within Climate Technology Transfer Work for the UNFCCC and the Paris Agreement?, 19 INT'L ENVrL. AGREEMENTS 107, 111 (2019). 362 The Geo. Wash. Int'l L. Rev. [Vol. 52 in establishing a system for "technological innovation is also an important part of technology transfer."35 Another study on newly innovated technology exports by the top twelve inventor countries shows that global leaders in green technology exports are located in Europe and North America. 36 Although Japan, Korea, and Australia are also among the top few, these countries have not shown enough efficiency in exporting new technologies. 37 Indeed, Japan has proved itself a leader in green innovation, but fails significantly in exports. 38 The success of both Europe and North America in this realm has been facilitated by economic integration and regional cooperation mechanisms that took place under the European Union (E.U.) 39 and the North American Free Trade Agreement (NAFTA).40 On the contrary, the lack of regional cooperation or economic integration perhaps explains the disappointing efforts in green exports by Japan, Korea, and Australia.4 1 The same can be said for other advanceddeveloping countries that lack green exports. Considering these factors, the acceleration and promotion of post-Paris green-technology innovation and transfer should not be based solely on North-South cooperation. Instead, technology transmission from developed to developing countries should be based on South-South cooperation, thereby enabling transfers between advanced-developing countries and other emergent nations. The engagement of all developing countries in the innovation, deployment, and transfer of green technologies is - necessary, not only because they require access to aid to combat climate change, but also because green technologies can promote national sustainable development. All Parties to the Paris Agreement commit to ensuring that their efforts against climate change take into consideration the goal of attaining sustainable development.4 2 Furthermore, in 2015, the global community adopted the United Nation's Sustainable Devel35. Hao Min, The Analysis of the Relationship Between Clean Technology Transfer and Chinese Intellectual Property Countering the Climate Change 12 (Aalborg Univ. Research Ctr. on Dev. & Int'l Relations, Working Paper No. 147, 2011). 36. Dechezlepretre et al., supra note 5, at 123. 37. Id. 38. Id. 39. Treaty on European Union, July 29, 1992, 1992 O.J. (C 191) 1. 40. North American Free Trade Agreement, Can.-Mex.-U.S., Dec. 17, 1992, 32 I.L.M. 289 (1993). 41. Dechezlepretre et al., supra note 5, at 123. 42. The Paris Agreement, supra note 1, arts. 2, 4, 6-8. South-South Cooperationfor Innovation 2020] 363 opment Goals (SDGs) 2030,43 which acknowledges the leading role 44 of South-South cooperation in achieving its seventeen key goals. Among the seventeen goals, six have explicit links to innovation, 45 diffusion, and transfer of green technologies, and four implicitly refer to the necessity of innovation, diffusion, and transfer of green technologies. 46 Previous studies have shown that the component of economic growth in sustainable development is positively corre- lated with a country's capacity to innovate and deploy technologies, and vice versa.4 7 This is evident from the experiences of 48 Japan and the "Asian Tigers," where the economic progresses of these countries depended on how well they adopted and deployed 49 foreign technologies given their national context. C. Facilitatorsand Barriers of Technology Transfer Methods that facilitate technology transfer include trade, foreign 50 Although these methods direct investment (FDI), and licensing. do not guarantee complete and equal transfer of technology, creat43. See Sustainable Development Goals, UNITED NATIONS, https://sdgs.un.org/goals [https://perma.cc/79QK-9RLQ] (last visited July 17, 2020) ("The 2030 Agenda for Sustainable Development, adopted by all United Nations Member States in 2015, provides a shared blueprint for peace and prosperity for people and the planet, now and in the future. At its heart are the seventeen Sustainable Development Goals, which is an urgent call for action by all countries-both developed and developing-in a global partnership."). 44. See U.N. Secretary General, Role of South-South Cooperationand the Implementation of the 2030 Agenda for Sustainable Development: Challenges and Opportunities, 1 2, U.N. Doc. A/ 73/383 (Sept. 17, 2018). 45. The six goals are Goal 6: Clean Water and Sanitation; Goal 7: Affordable and Clean Energy; Goal 9: Industry, Innovation, and Infrastructure; Goal 11: Sustainable Cities and Communities; Goal 13: Climate Action; Goal 14: Life Below Water; and Goal 15: Life on Land. See Sustainable Development Goals, supra note 43. 46. The four goals are Goal 1: No Poverty; Goal 3: Good Health and Well-being; Goal 8: Decent Work and Economic Growth; and Goal 10: Reduced Inequalities. See id. 47. See Jorrit Gosens et al., The Role of TransnationalDimensions in Emerging Economy: Technological Innovation Systems for Clean-Tech, 86 J. CLEANER PRODUCTION 378, 378 (2014) [hereinafter Gosens et al., The Role of TransnationalDimensions]. 48. Id. at 378 n.2 ("Japan and the 'Four Asian Tigers' (Hong Kong, the Republic of Korea, Singapore, and Taiwan) were among the earliest emerging economies after World War II."). These countries experienced expedited economic growth and growing technological capacity during the 1950s and 1960s, and have almost attained status as advanced economies. Id.; see CHRISTOPHER FREEMAN, TECHNOLOGY, POLICY, AND ECONOMIC PERFORMANCE: LESSONS FROM JAPAN 2 (1987); see also Jorrit Gosens et al., Clean-Tech Innovation in Emerging Economies: TransnationalDimensions in Technological Innovation System Formation2, (Lund Univ. Ctr. for Innovation, Research & Competence in the Learning Econ., Paper No. 2013/10, 2013), http://wp.circle.lu.se/upload/CIRCLE/workingpapers/201310_ CoenenGosensLu.pdf [https://perma.cc/N4JC-FFR3]. 49. Gosens et al., The Role of TransnationalDimensions, supra note 47, at 380. 50. Dechezlepretre et al., supra note 5, at 120. The Geo. Wash. Int'l L. Rev. 364 [Vol. 52 ing a favorable environment for trading and licensing green technologies and facilitating FDI in green technology innovation in developing countries is vital. Indeed, both national and international legal systems can play an important role in fostering a favorable environment. The presence of appropriate environmental frameworks and regulations in recipient countries has enormous positive effects on the transfer of green technologies. 51 In connection with institutional barriers, an important factor is whether a country is a signatory to multilateral or international environmental agreements. This is because many of these agree- ments impose technology-related commitments on the parties.5 2 A study by Corvaglia identified key barriers to international transfer of technology in many developing countries, including deficiencies in necessary information and skills, required infrastructure, and the financial resources required to purchase technology.53 Corvaglia further identified institutional barriers such as "lack of legal and regulatory frameworks, limited institutional capacity, excessive bureaucratic procedures", corruption, political barriers that interfere with domestic markets, and weak voices in civil society. 54 Moreover, institutional barriers include lack of IPR-as a Chatham House report explains, "patent portfolio is a currency-for attracting venture capital, entry into strategic alli- ances, protection against litigation, as well as opening opportunities for mergers and acquisitions."55 51. See id. at 121 (explaining that companies depend on the existence of patent laws in the recipient country to lower the likelihood of imitations or divulgence of information about the technology). 52. Cf Convention on Biological Diversity arts. 1, 12, 18, June 5, 1992, 1760 U.N.T.S. 79 (mandating, for example, that "[e]ach Contracting Party shall promote technical and scientific cooperation with other Contracting Parties"); Montreal Protocol on Substances that Deplete the Ozone Layer art. 10, Dec. 16, 1987, 1522 U.N.T.S. 3 (encouraging Parties to "co-operate in promoting technical assistance"). For a more comprehensive analysis, see Org. for Econ. Cooperation & Dev. [OECD], MultilateralEnvironmental Agreements and Private Investment, OECD Doc. ENV/EPOC/GSP(2005)4/FINAL (Nov. 21, 2005), cited in Dechezlepretre et al., supra note 5, at 129. 53. See Maria Anna Corvaglia, South-South Technology TransferAddressing Climate Change and Its (Missing) International Regulatory Framework, 8 CARBON & CLIMATE L. REV. 125, 128 (2014). 54. See id. at 129 (quoting United Nations Framework Convention on Climate Change, Technical Paper on Terms of Transfer of Technology, at 6, UN Doc. FCCC/TP/ 1998/1 (Oct. 13, 1998)). 55. BERNICE LEE ET AL., INTELLECrUAL PROPERTY AND CHArHAM HOUSE, WHO OwNs OUR Low CARBON FTURE? ENERGY TECHNOLOGIES 57 (2009), https://www.chatham house.org/sites/default/files/public/Research/Energy,%20Environment%20and%20 Development/r0909_lowcarbonfuture.pdf [https://perma.cc/FUL8-BU7R]. South-South Cooperationfor Innovation 2020 ] III. 365 TECHNOLOGY TRANSFER, SOUTH-SOUTH COOPERATION, AND INTERNATIONAL LAWS A. Climate Regimes for Transfer of Green Technologies The 1992 UNFCCC and 2015 Paris Agreement acknowledge the necessity of international cooperation at all levels to combat climate change. 56 To achieve the UNFCCC objective of stabilizing GHG emissions, 57 the Paris Agreement sets goals including "holding the increase in the global average temperature to well below 2°C above pre-industrial levels." 58 It also sets a goal to pursue "efforts to limit the temperature increase to 1.5 0 C above pre-industrial levels." 59 To fulfill these goals, the Agreement introduces a system of Nationally Determined Contributions (NDCs), rather 60 than a specific emissions reduction target for a specific country. Thus, participation of all developing nations is critical to the success of a future climate regime. Parties to the Agreement also 61 agree to provide financial assistance to developing countries, as well as "strengthen[ ] cooperative action on technology development and transfer ... ."62 This commitment to support developing nations aims to promote low GHG emissions and "climate-resilient development."6 3 Green technologies have a critical role to play in this regard-the objective of reducing annual GHG emissions can be fulfilled through innovation and mass application of green technologies. 64 As indicated in Part I, green technologies are necessary for the two essential tools required to fight climate change-adap- tation and mitigation. Issues pertaining to the international transfer of green technology first received serious international attention in 1992 during the United Nations Conference on Environment and Development (UNCED),65 now known as the Rio Summit. Among the outcomes of the conference, not only the United Nations Agenda 21 (which contained a whole chapter on technology transfer) but also the UNFCCC provided an international legal and institutional framework for the transfer of green technology in the context of climate 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. UNFCCC, supra note 1, pmbl.; The Paris Agreement, supra note 1, pmbl. UNFCCC, supra note 1, art. 2. The Paris Agreement, supra note 1, art. 2(1)(a). Id. Id. art. 3. Id. art. 2(1)(c). Id. art. 10(6). Id. art. 2(1)(c). Id. art. 10(5). UNCED, supra note 3, 11 34.1, 34.3. " The Geo. Wash. Int'l L. Rev. 366 [Vol. 52 change. 66 The inclusion of technology transfer was derived from one of the main guiding principles of the UNFCCC-the principle of Common But Differentiated Responsibilities (CBDR),67 which was a result of the strong bargaining positions of developing nations that did not want to assume rigid environmental protection obligations unless they were not required to agree to financial cooperation or technology transfer commitments.6 8 Technology transfer was further institutionalized in subsequent UNFCCC agreements, including the 1997 Kyoto Protocol Paris Agreement. 69 and the 2015 70 Parties to the UNFCCC make explicit commitments to facilitate the "development, application and diffusion" of green technologies. 71 The developed member countries (or Annex II Parties) also agree to provide "new and additional" financial resources and technology-transfer cooperation to all other Parties.7 2 Accordingly, developed country Parties are required to "take all practicable steps to promote, facilitate and finance, as appropriate, the trans- fer of, or access to, environmentally sound technologies and knowhow to other Parties, particularly developing country Parties . .. pursuant to their Convention obligations. 73 Because the ability of developing nations to fulfill their Convention obligations is largely dependent on the developed nations' commitment to providing financial and technological cooperation, the Convention's provision requiring financial and technology transfer from developed to developing nations is crucial. 7 4 66. UNFCCC, supra note 1, arts. 4(3), (7)-(9), 11; UNCED, supra note 3, ch. 34. 67. See Anna Huggins & Md Saiful Karim, Shifting Traction: Differential Treatment and Substantive and Procedural Regard in the InternationalClimate Change Regime, 5 TRANSNAT'L ENVrL. L. 427, 428 (2016). Based on the CBDR principle, "all states have common environmental responsibilities, but the manner in which each state meets its responsibilities should vary according to country-speci?c economic, historical, social and ecological variables." While this was codified in the Kyoto Protocol "in the form of differential treatment in [states'] central treaty obligations, including those pertaining to mitigation, the Paris Agreement replaces top-down differentiation with respect to mitigation obligations with a new paradigm of bottom-up 'self-differentiation', as parties select their own mitigation targets." Id. (footnotes omitted) (quoting Lavanya Rajamani, The Devilish Details: Key Legal Issues in the 2015 Climate Negotiations, 78 MOD. L. REv. 826, 852 (2015)). 68. Corvaglia, supra note 53, at 132. 69. Kyoto Protocol to the United Nations Framework Convention on Climate Change art. 6, Dec. 10, 1997, 2303 U.N.T.S. 162, http://unfccc.int/resource/docs/convkp/ kpeng.pdf [https://perma.cc/T3GP-7SZX] [hereinafter The Kyoto Protocol]. 70. The Paris Agreement, supra note 1, pmbl. 71. UNFCCC, supra note 1, art. 4(1)(c). 72. Id. art. 4(3). 73. Id. art. 4(5). 74. Id. art. 4(7). 2020 ] South-South Cooperationfor Innovation 367 The UNFCCC also promotes the creation of an innovationfriendly environment. Parties to the Convention first agreed to promote and cooperate in "the development, application and diffusion, including transfer" of green technologies.7 5 Thereafter, the Parties agreed to "[p]romote and cooperate in scientific, technological, technical, socio-economic and other research, systematic observation and development of data archives related to the climate system." 76 To implement the technology transfer outlined in the UNFCCC, Parties to the Convention in 2001 established a specific transfer framework covering the following five themes: (1) "technology needs and needs assessments"; (2) "technology information"; (3) "enabling environments for technology transfer"; (4) "capacitybuilding for technology transfer"; and (5) "mechanisms for technology transfer." 77 In 2007, the Parties added four subthemes: (1) "innovative financing"; (2) "international cooperation"; (3) "endogenous development of technologies"; and (4) "collaborative research and development." 78 To examine technology development and transfer issues, the Parties also established in 2001 an Expert Group on Technology Transfer (EGTT).7 Both the EGTT and the technology-transfer framework assisted countries in conducting their technology needs assessments. 80 Additionally, from 2001 to 2010, the EGTT aided countries in using financing and 81 capacity-building tools to measure their technological needs. The EGTT also worked on streamlining processes to monitor and evaluate the technology-transfer framework's effectiveness, as well as building long-term strategies for technology development and transfer.8 2 In 2010, the EGTT was abolished upon introduction of a "technology mechanism" established at the 16th Conference of the Parties (COP 16).83 Essentially, the technology mechanism aimed at 75. Id. art. 4(1)(c). 76. Id. art. 4(1)(g). 77. Technology Transfer Framework, TT:CLEAR, https://unfccc.int/ttclear/tec/techtransfer-framework.html [https://perma.cc/74Q6-9UFL] (last visited Aug. 6, 2020). 78. Id. 79. Id. 80. Id. 81. Id. 82. Id. 83. U.N. Framework Convention on Climate Change, Report of the Conference of the Parties on Its Sixteenth Session, held in Cancun from 29 Nov. to 10 Dec. 2010: Addendum-Part Two: Action Taken by the Conference of the Parties at Its Sixteenth Session, 1 113, U.N. Doc. FCCC/CP/2010/7/Add.1 (Mar. 15, 2011), https://undocs.org/FCCC/ 368 The Geo. Wash. Int'l L. Rev. [Vol. 52 facilitating "the implementation of enhanced action on technology development and transfer" and supporting "action on mitigation and adaptation in order to achieve the full implementation of the Convention." 84 Becoming fully operational in 2012,85 the technol- ogy mechanism was backed by two key institutions: the Technology Executive Committee (TEC) and the Climate Technology Centre and Network (CTCN). 86 The COP 16 mandated both institutions to expedite the "full implementation" of the technology mechanism. 87 Constituting one arm of the "technology mechanism," the TEC identifies suitable policies and offers suggestions to aid state parties in developing and transferring green technologies. 88 As the implementation arm of the technology mechanism, the CTCN assists countries in implementing climate-technology related projects and programs. 89 The CTCN provides three core services: technical assistance to developing countries; enhanced collaboration among diverse stakeholders on climate technology; and access to knowl- edge on climate technologies. 90 Similarly, the Kyoto Protocol adopted provisions in connection with promoting green-technology transfer. Although not explicitly aimed at facilitating green-technology transfer, the clean development mechanism established by the Kyoto Protocol was a substantial step towards the transfer of green technologies in developing countries. 91 Lessons from the clean development mechanism can be applied to form a new voluntary mechanism9 2 or "sustainable development" mechanism 98 introduced in the Paris Agreement to CP/2010/7/Add.1 [https://perma.cc/29MK-945V] [hereinafter UNFCCC Report on Sixteenth Session]. 84. Id. 85. See INT'L CTR. FOR TRADE & DEV., THE CuMATE TECHNOLOGY MECHANISM: ISSUES AND CHALLENGES 1 (Mar. 2011), https://www.ictsd.org/bridges-news/biores/news/the-cli mate-technology-mechanism-issues-and-challenges [https://perma.cc/GUE3-J5SA]. 86. UNFCCC Report on Sixteenth Session, supra note 83, 1 118. 87. Id. 88. Technology Executive Committee (TEC), CUMATE TECH. CTR. & NETWORK, https:// [https:// www.ctc-n.org/about-ctcn/organisations/technology-executive-committee-tec perma.cc/KU5P-FPY9] (last visited July 6, 2020). 89. Climate: Get the Big Picture, U.N. FRAMEWORK CONVENTION ON CLIMATE CHANGE, https://unfccc.int/resource/bigpicture [https://perma.cc/KGD5-6T6Z] (last visited Aug. 6, 2020). 90. Id. 91. Corvaglia, supra note 53, at 132. 92. The Paris Agreement, supra note 1, art. 6(4). 93. Id. South-South Cooperationfor Innovation 2020 ] 369 promote South-South cooperation and facilitate innovation and transfer processes. Importantly, the 2015 Paris Agreement contains more specific provisions on the development and transfer of green technologies than any previous international instruments. Like many climate regime objectives, the UNFCCC and Kyoto Protocol provisions regarding development and transfer of green technologies were not realized in a satisfactory manner. 9 4 Meanwhile, the total global carbon dioxide emissions has increased by almost fifty percent over the last two decades. 95 More alarmingly, statistics show that global emissions grew more rapidly between 2000 and 2010 compared to each of the three previous decades. 9 6 Hence, technology-related provisions outlined in the Paris Agreement are important because "[t]echnology the Agreement endorses UNFCCC's 97 and creates a "technology framework" that facili[m]echanism" tates both development and transfer frontiers. 98 The Paris Agreement makes it clear that "accelerating, enabling and encouraging innovation" of green technologies should be supported by the technology and financial mechanisms of the UNFCCC (i.e., the Global Climate Fund [GCF]).99 Support by the GCF is encouraged to ensure collaborative approaches to R&D, and "facilitating access to technology, in particular for early stages of the technology cycle, to developing country Parties" as stated under Article 10(5) of the Paris Agreement. 100 Although Article 10(5) does not directly refer to the promotion of South-South cooperation, the spirit of a collaborative approach financed by the GCF may encourage South-South cooperation for prospective development, diffusion, and transfer purposes. B. Climate Regime for South-South Cooperation The UNFCCC, Kyoto Protocol, and Paris Agreement all remain silent on South-South cooperation issues. Although UNFCCC's 2014 SYNSUMMARY FOR POLICY MAKERs 5 (2015), https://www.ipcc.ch/pdf/assess [https://perma.cc/4ZTH-PMWR] ment-report/ar5/syr/AR5_SYR_FINALSPM.pdf (explaining that greenhouse gas emissions increased from 1970-2010 despite the implementation of policies to curtail climate change). 95. Id. at 23. 96. Id. at 5. 97. The Paris Agreement, supra note 1, art. 10(3). 98. Id. art. 10(4). 99. Id. art. 10(5). 100. Id. 94. See INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, CLIMATE CHANGE THESIS REPORT: The Geo. Wash. Int'l L. Rev. 370 [Vol. 52 text does not specifically mention South-South cooperation, the spirit of certain provisions suggests the necessity, scope, and possibility of cooperation. First, the Convention's preamble acknowledges that "the global nature of climate change calls for the widest possible cooperation by all countries." 10 1 The phrase "widest possible cooperation" extending to "all countries" clearly contemplates collaboration among and between developing countries. 102 Furthermore, under Article 4(5) of the Convention, the obligation to take "all practicable steps" to promote, facilitate, or finance "the transfer of, or access to, environmentally sound technologies and know-how to other Parties, particularly developing country Parties" to enable Parties to meet Convention obligations is conferred not only to developed nations, but also to all Parties that are "in a position to do so."103 In addition, the Convention clearly states that the "efforts to address climate change may be carried out cooperatively by interested Parties." 10 4 In other words, Parties that wish to collaborate with other Parties (whether developing or developed nations) to combat climate change should do so. The UNFCCC further states that Parties "should cooperate to promote a supportive and open international economic system that would lead to sustainable economic growth and development in all Parties, particularly developing country Parties, thus enabling them better to address the problems of climate change." 105 This arguably also applies to creating efficient markets for the innovation, diffusion, and transfer of green technologies in all countries, especially those in the South. Few provisions in the Kyoto Protocol also implicitly provide for the promotion of South-South cooperation. For example, the text requires Parties to work together in "the creation of an enabling environment for the private sector, to promote and enhance the transfer of, and access to, environmentally sound technologies." 106 In addition, all Parties are to cooperate in "the formulation of policies and programmes for the effective transfer of environmentally sound technologies that are publicly owned or in the public domain." 107 Because the Kyoto requirements do not define any mode or direction for cooperation, it does not limit cooperation to 101. 102. 103. 104. 105. 106. 107. UNFCCC, supra note 1, pmbl. Id. Id. art. 4(5). Id. art. 3(3). Id. art. 3(5). The Kyoto Protocol, supra note 69, art 10(c). Id. 2020] South-South Cooperationfor Innovation 371 North-South cooperation. Instead, the Kyoto Protocol envisions all types of cooperation depending on demand and necessity, including North-South, South-South, and triangular cooperation. In fact, developing nations or advanced-developing nations can cooperate effectively to create supportive environments for private sectors or to adopt suitable laws and policies in developing countries because they share similar socio-economic circumstances and can better understand national issues. Like the 1992 UNFCCC and 1997 Kyoto Protocol, the 2015 Paris Agreement does not directly mention the term "South-South" cooperation. However, it encourages South-South, North-South and triangular cooperation in several provisions. For example, Parties to the Agreement explicitly "recognize the importance of support for and international cooperation." 10 8 Under Article 10(2), which acknowledges the importance of technology in "the imple- mentation of mitigation and adaptation actions," Parties agree to "strengthen cooperative action on technology development and transfer." 10 9 Moreover, the Agreement undertakes to support developing country Parties in implementing their obligations by providing various forms of aid, including financial aid, which extend toward "strengthening cooperative action on technology development and transfer at different stages of the technology cycle."1 10 In addition, all Parties must unite "to enhance the capacity of developing country Parties."i Given that the Agreement does not specify how Parties should cooperate, it invites the possibility of triangular and South-South coordination in creating environments suitable for innovation and building capacity for development, diffusion, and transfer of green technologies in emergent countries. Although the texts of legal instruments under the global climate regime do not explicitly promote South-South cooperation, they also do not prohibit Parties from participating in South-South cooperation. In fact, requiring developed country Parties (Annex II Parties to the Convention)1 1 2 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"' indicates 108. 109. 110. 111. 112. The Paris Agreement, supra note 1, art. 7(6). Id. art. 10(2). Id. art. 10(6). Id. art 11(3). See supra note 13 for a discussion of UNFCCC Annex 11 Parties. The Geo. Wash. Int'l L. Rev. 372 [Vol. 52 that Article 4(5) of the UNFCCC-the primary Convention dealing with climate change-permits Parties to actively promote SouthSouth cooperation if it is essential to "enable them to implement the provisions of the Convention." 1 3 Finally, recent statements from the U.N. Secretary General and the UNFCCC Executive Secretary suggests that South-South cooperation has become inevitable. On March 19, 2019, during the opening session of the Second U.N. Conference on South-South Cooperation (UNOSSC) held in Buenos Aires, Argentina, U.N. Secretary General Ant6nio Guterres declared "Global South cooperation" as "vital" to both the "climate change fight" and its "devel- opment." 1 4 On a different occasion, UNFCCC Executive Secretary Patricia Espinosa explained that "to encourage and enhance South-South cooperation, the United Nations is commit- ted to supporting the global South. We commit our knowledge and resources to this effort and will mobilize other actors within the United Nations system whenever possible."11 5 C. InternationalTrade Regime Although original texts relating to international trade such as WTO agreements or Doha negotiation rounds do not reflect South-South cooperation, the importance of such texts is undeniable. Important texts to consider are IPR and IPR-governing trea- ties such as the Agreement on Trade-Related Intellectual Property Rights (TRIPS). 1. Aspects of Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) Green-technology innovation and transfer is linked to IP protection, especially patent protection. Generally, the existence of IPR facilitates innovation by providing "rewards" for innovators.1' 6 113. UNFCCC, supra note 1, art. 4(5). 114. Global South Cooperation 'Vital' to Climate Change Fight, Development, Guterres Tells Historic Buenos Aires Summit, UN NEws (Mar. 20, 2019), https://news.un.org/en/story/2019/ 03/1035011 [https://perma.cc/L9S7-6HNR]. 115. U.N. Climate Change Secretariat, Catalysing the Implementation of Nationally Determined Contributions in the Context of the 2030 Agenda Through South-South Cooperation, at 3 (May 2017), https://unfccc.int/sites/default/files/sscndcreport.pdf [https://perma.cc/6C9Y-3SCW]. 116. Rod Falvey & Neil Foster, U.N. Indus. Dev. Org., The Role of Intellectual Property Rights in Technology Transfer and Economic Growth: Theory and Evidence vii (2006) (working paper) (on file with the United Nations Industrial Development Organization), https://www.unido.org/sites/default/files/2009-04/Roleof intellectual_propertyrights in_technologytransferand_economicgrowth_0.pdf [https://perma.cc/CVV7-8LHK]. 20201] South-South Cooperationfor Innovation 373 However, the extent to which IPR protection facilitates innovation of green technology in comparison to that of "dirty technology" 11 7 remains unclear. 118 Additionally, the role of IPR in the transfer of green technologies to developing countries is also unclear. As a 2012 UNFCCC report stated, "[i]ntellectual property rights were identified as an area for which more clarity would be needed on their role in the development and transfer of climate technologies based upon evidence on a case by case basis." 1 19 While some scholars deem IPR as an obstacle to developing nations' access to green technologies, 12 0 others consider IPR a catalyst for green-technology innovation and transfer to developing nations. 121 In the context of international negotiations, many developing countries openly consider IPR as a "barrier to their sustainable energy development," and question IPR's compatibility with the CBDR principle. 122 Conversely, Gaines observes that "most developed countries, including the E.U. and the U.S., disagree with this assessment and have worked successfully to keep discussion of intellectual property rights off the negotiation agenda." 12 3 While some debate as to the inclusion of IPR issues took place during the drafting of the Paris Agreement, the final text remains silent on IPR issues. 124 That said, the Paris Agreement acknowledges that "accelerating, encouraging and enabling innovation is critical for an effective, long-term global response to climate 117. This Article refers to "dirty technology" as technology that is not considered as energy-efficient or energy-saving, as well as technology that is not run by renewable energy. 118. Matthew Rimmer, Submission to the Joint Standing Committee on Treaties on the Paris Agreement 62 (Joint Standing Comm. on Treaties Inquiry into the Paris Agreement, Submission 41, Oct. 2016), https://works.bepress.com/matthew_rimmer/260/ [https:// perma.cc/3CX4-5A6D]. 119. Subsidiary Body for Sci. & Tech. Advances, Subsidiary Body for Implementation, Report on Activities and Performance of the Technology Executive Committee for 2012, 1 35(g), U.N. Doc. FCCC/SB/2012/2 (Oct. 18, 2012), https://unfccc.int/resource/docs/ 2012/sb/eng/02.pdf [https://perma.cc/RJ6A-GNYP]. 120. See generally Carlos M. Correa, The Burden of Intellectual Property Rights, BULL. ATOMIC SCIENTISTS (Feb. 18, 2015), https://thebulletin.org/climate-mitigation-and-intellec tual-property-tension/burden-intellectual-property-rights [https://perma.cc/S8LQMQD6] (summarizing defenders of IPR's arguments that IPR does not create a barrier to adoption of green technologies). 121. Falvey & Foster, supra note 116, at 23. 122. Sanford E. Gaines, International Law and Institutions for Climate Change, in RESEARCH HANDBOOK ON INTELLECTUAL PROPERTY AND CLIMATE CHANGE 33, 49 (Joshua D. Sarnoff ed., 2016). 123. Id. 124. See generally The Paris Agreement, supra note 1 (no reference to intellectual property rights throughout the Agreement). 374 The Geo. Wash. Int'l L. Rev. [Vol. 52 change and promoting economic growth and sustainable development." 12 5 Since the IPR system and the "rewards" innovators gain by protecting their inventions from unauthorized use may be considered an "incentive" for "accelerating, encouraging and enabling innovation," 126 Article 10(5) of the Agreement implicitly favors and acknowledges the role of IPRs in innovating green technologies. The Paris Agreement neither expressly nor implicitly makes reference to the role of IPRs in the transfer of newly innovated green technologies to developing countries. Scholars are uncertain whether strong IPR protection impedes or facilitates green-technology transfer. 12 7 However, as mentioned in Part II.C, Corvaglia's study suggests that IPR is an institutional barrier in subsequent transfers of green technology. 128 Thus, it is important to assess whether IPR acts as an obstacle to the transfer of green technology or whether the flexibility allowed by TRIPS can overcome this barrier. Although TRIPS does not explicitly mention green-technology transfer, its preamble refers to the necessity of technology transfer in general. 129 Notably, the preamble makes clear "the underlying public policy objectives of national systems for the protection of intellectual property, including developmental and technological objectives."1 3 0 It further acknowledges "the special needs of the least-developed country Members in respect of maximum flexibility in the domestic implementation of laws and regulations in order to 13 1 In enable them to create a sound and viable technological base." addition, the objective clause of TRIPS explicitly states that "the protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology."132 Both the preamble and the objective clause regarding the positive role of IPR in innovation and transfer of technology may be too general to conclude that "technology" specifically includes 125. 126. The Paris Agreement, supra note 1, art. 10(5). Falvey & Foster, supra note 116, at 17. See AHMED ABDEL LATIF, INT'L CTR. FOR TRADE & DEV., INTELLECTUAL PROPERTY 127. RIGHTS AND GREEN TECHNOLOGIES FROM RIO TO RIO: AN IMPOSSIBLE DIALOGUE? 5 (July 2012). 128. See Corvaglia, supra note 53, at 129. 129. See generally Agreement on Trade-Related Aspects of Intellectual Property Rights pmbl., Apr. 15, 1994, Marrakesh Agreement Establishing the world Trade Organization, Annex 1C, 1869 U.N.T.S. 299, 33 I.L.M. 1197 [hereinafter TRIPS Agreement]. 130. Id. 131. Id. (emphasis added). 132. Id. art. 7. 2020 ] South-South Cooperationfor Innovation 375 green technology. However, the preamble and objective clause is important in interpreting other provisions of the IP regime and allowing "flexibility" for innovation in particular kinds of technologies. 133 For example, the 2001 Doha Declaration on TRIPS and Public Health refers to the importance of the TRIPS objective clause as a guiding principle for the global IP regime. 134 Furthermore, the Doha Declaration founded the Working Group on Trade and Technology Transfer (WGTT), which is responsible for negotiations in connection with promotion of technology transfer under TRIPS. 135 Regarding the possibility of inviting flexibility to patent protection for green technologies, the objective clause of TRIPS should be read in conjunction with the principle clause permitting countries to "adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development. ... "136 Given that climate change is considered a "common concern of humankind," the issue of green technology is also a "public interest" under TRIPS. 137 Thus, TRIPS allows countries to design their national IP frameworks in a manner that facilitates innovation and transfer of green technologies. The provision of "flexibility" for "public interest" is further supported by another TRIPS principle clause allowing countries to take appropriate measures against any "unreasonable" practices of IP holders if such practices "unreasonably restrain trade or adversely affect the international transfer of technology." 138 Therefore, for the purpose of facilitating transfer of green technologies either through traditional North-South cooperation or by building South-South collaboration, requiring countries to adopt a special patent system for green technologies would not, at least in principle, contradict TRIPS. The flexibility of IP systems may allow emerging economies to adopt current IP systems for green tech133. See Vienna Convention on the Law of Treaties art. 31(2), May 23, 1969, 1155 U.N.T.S. 331. 134. See World Trade Organization, Ministerial Declaration on the TRIPS Agreement and Public Health, WTO Doc. WT/MIN(01)/DEC/2, 41 I.L.M. 755 (2001) [hereinafter Ministerial Declaration on the TRIPS Agreement]. 135. See Working Group on Trade and Transferof Technology, WORLD TRADE ORG., https:// www.wto.org/English/tratope/devel_e/devwkgptradetransfer_technology_e.htm [https://perma.cc/K95K-5SGL] (last visited July 17, 2020). 136. TRIPS Agreement, supra note 129, art. 8(1). 137. The Paris Agreement, supra note 1, pmbl. 138. TRIPS Agreement, supra note 129, art. 8(2). 376 The Geo. Wash. Int'l L. Rev. [Vol. 52 nologies, which may result in enhanced South-South cooperation in both innovation and subsequent technological transfer. Additionally, TRIPS provisions regarding patent systems provide the option of non-patentability of innovations "within their territory of the commercial exploitation" if it is essential "to protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment. ... "139 This provision may give countries some flexibility to decide whether any specific kind of green technology will be protected by patents. If necessary, developing countries with strong innovation capacities may adopt strict criteria for patentability, especially for the "inventive step" or "non-obviousness" tests.1 4 0 This will not necessarily be inconsistent with TRIPS provisions, as the international IPR regime does not require any specific standard of creativity for granting patents.14 1 If advanced-developing countries or emerging economies adopt a strict criterion for patentability, this will facilitate smooth transfer of the technology to other developing countries. In practice, South Africa took a similar, although not identical, approach to "non-patentability" when it introduced a "compulsory license" option for manufacturing drugs essential to fighting national epidemics.1 4 2 Recently, Thailand also introduced a compulsory license for drugs essential to fighting long term health- 139. Id. art. 27(2). 140. "A claimed invention is considered to involve an inventive step, if having regard to the prior art, it is not, at the relevant date, obvious to a person skilled in the art. In general, a person skilled in the art should be presumed to be a hypothetical person having ordinary skill in the art, and being aware of or possessing common general knowledge in the art at the relevant date." Standing Comm. on the Law of Patents, Further Study on Inventive Step (PartI), WIPO Doc. SCP/28/4 (June 16, 2018), https://www.wipo.int/edocs/ mdocs/scp/en/scp28/scp_28_4.pdf [https://perma.cc/A8N7-5XJB]. 141. See Ass'n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 590-95 (2013); see also Decreto No. 9.279 de 14 de Maio de 1996, at arts. 10(I), (II), DiAruo OFICIAL DA UNIAO [D.O.U.] de 14.05.1996 (Braz.); Patent Law of the People's Republic of China art. 25(1)-(2) (promulgated by the Standing Comm. Nat'l People's Cong., Dec. 27, 2008, amended Oct. 1, 2009) (China); Convention on the Grant of European Patents art. 52(2), Oct. 5, 1973, 1065 U.N.T.S. 199, https://www.epo.org/law-practice/legal-texts/html/epc/ 1973/e/mal.html [https://perma.cc/S9DV-T3CR] (entered into force Oct. 7, 1977); Bilski v. Kappos, 561 U.S. 593 (2010). 142. See generally Sophie Huddart et al., The Doha Declarationin Action: An Examination of Patent Law Flexibilities in the South African Acquired Immunodeficiency Syndrome Epidemic, 5 J. HEALTH SPECIALTIEs 30, 31 (2017) (explaining that the South African government relaxed its patent laws during its HIV crisis to make generic drugs accessible to its population). 20201] South-South Cooperation for Innovation 377 related problems. 14 3 Evidently, the international regime for IPR permits granting a compulsory license for patents without authorization from innovators in the case of a "national emergency or other circumstances of extreme urgency or in cases of public noncommercial (i.e., government) use." 144 In fact, the 2001 Doha Declaration clarified that countries have the right to not only grant compulsory licenses, but also determine 14 5 Accord"the grounds upon which such licenses are granted." ingly, due to the urgent necessity of combating climate change, countries can determine that innovation and transfer of green technologies is an undeniable "emergency." 146 Thus, the provisions of the international IPR regime are not contradictory but in fact complementary to those of the Paris Agreement; although this conclusion largely depends on how the provisions are interpreted. In practice, mere introduction of a "compulsory license" or "non-patentability" for green technologies does not permit transfer of green technologies, as most developing nations are incapable of replicating or "reverse engineering" green technology mechanisms.1 4 7 Nevertheless, South-South cooperation can make compulsory licensing provisions meaningful by enabling advanceddeveloping countries to reproduce or modify green technologies at cheaper manufacturing costs.1 4 8 In that case, middle-income developing and least-developed countries will be able to buy green technologies at a cheaper price, consequently promoting SouthSouth cooperation for the innovation and transfer of green technologies. If "compulsory licensing" is introduced for green technology patents, it will arguably mostly benefit the least-developed or underdeveloped countries. Once accessible, green technologies will gradually create more favorable conditions and empower less viable nations to manufacture their own innovations. In turn, introduction of compulsory licensing for green technologies may also 143. Fabrice Mattei, A New Approach to Compulsory Licensing in Thailand, ROUSE (May 31, 2007), http://www.rouse.com/magazine/articles/news-and-articles/a-new-approach-tocompulsory-licensing-in-thailand?tag=life%20sciences [https://perma.cc/L4K6-4QVY]. 144. TRIPS Agreement, supra note 129, art. 31(b). 145. Ministerial Declaration on the TRIPS Agreement, supra note 134, ¶ 5.b. 146. TRIPS Agreement, supra note 129, art. 31(b). 147. Ricardo Hausmann, Why Do Some Countries Develop Faster Than Others?, woRn EcoN. F. (Aug. 21, 2014), https://www.weforum.org/agenda/2014/08/countries-develop ment-inequality [https://perma.cc/4L5U-X2UH]. 148. Kim Lukac, Compulsory Licensing for Green Technology Transfer: Should Green Technology Be Subject to Compulsory Licensing to Advance Green Technology Transfer?, at 37 (June 2019) (unpublished M.L.T. thesis, Tilburg University). 378 The Geo. Wash. Int'l L. Rev. [Vol. 52 fulfill the global climate goal of creating environments that facilitate capacity-building for technology development and transfer in emergent countries. Most importantly, compulsory licensing will lead all nations towards realizing the ultimate goal set out in the Paris Agreement-to reduce annual GHG emissions and thereby limit "the temperature increase to 1.5*C above pre-industrial levels." 14 9 Significantly, the Paris Agreement neither argues for "non-patentability" nor advocates a "compulsory license" for green technol- ogies, but denotes climate change a "universal" 150 and "urgent"1 5 1 issue for humankind. If this is the case, green technologies are undoubtedly "urgent" lifesaving tools needed for global survival. Thus, a country that introduces a "compulsory license" or "nonpatentability" does not necessarily infringe upon the accepted practices outlined in the global IPR regime. In addition to the foregoing, TRIPS contains a provision that obliges developed countries to "provide incentives to enterprises and institutions in their territories for the purpose of promoting and encouraging technology transfer to least-developed country Members in order to enable them to create a sound and viable technological base." 152 It is important to examine this provision in relation to innovation and transfer of green technologies specifi- cally within least-developed states. Pursuant to Article 66(2), if developed and advanced-developing countries provide incentives to public and private entities to develop green technologies, with a view to transfer those to least-developed countries, global innovation and prospective transfer of green technology will be positively impacted in two respects. First, the entities engaged in green technology innovation would continue to advance their innovation capabilities. 153 Second, the technology-receiving least-developed countries would be able to "create a sound and viable technological base," thus assisting them in innovating green technologies on their own. 154 In this regard, although Article 66(2) primarily aims to facilitate North-South cooperation, it essentially results in trian- gular cooperation followed by South-South cooperation for subsequent innovation and transfer purposes. Triangular cooperation will occur when developed countries fulfill their TRIPS obligations 149. 150. 151. 152. 153. 154. The Paris Agreement, supra note 1, at pmbl.; Lukac, supra note 148, at 37. The Paris Agreement, supra note 1, pmbl. Id. TRIPS Agreement, supra note 129, art. 66(2). Id. Id. 2020] South-South Cooperationfor Innovation 379 by assisting advanced-developing nations in innovating green technology and transferring green technology to least-developed counFinally, South-South tries at comparatively cheaper costs. cooperation will occur as advanced-developing countries become increasingly capable of improving and distributing their own green technologies to other nations. 2. Other Trade-Related Agreements In addition to IPR, the Doha Negotiations on environmental goods and services also concern issues relating to green-technology 55 Also, the Envitransfer through trans-boundary trade activities.1 56 2014 by the in launched (EGA)1 Agreement Goods ronmental WTO and the WTO Ministerial Declaration 2001157 concern tariff and related issues on green technology. Additionally, the international trade regime considers technology transfer through FDIthe WTO Agreement on Trade-related Investment Measures 158 (TRIMs) deals with international investment issues. The Doha Negotiations on environmental goods can play a positive role in facilitating transfer of green technologies by accelerating trans-boundary trading of goods and services. A study 155. Eliminating Trade Barrierson Environmental Goods and Services, WORLD TRADE ORG., [https:// https://www.wto.org/english/tratope/envir_e/envir_negserv_e.htm perma.cc/F5WD-JFDN] (last visited July 17, 2020) ("The 2001 Doha Ministerial Declaration instructs Members to negotiate the reduction or, as appropriate, elimination of tariff and non-tariff barriers on environmental goods and services. It has been emphasized that these negotiations should aim at achieving sustainable development by creating a triplewin situation for trade, the environment, and development."). 156. See Environmental Goods Agreement, WORLD TRADE ORG., https://www.wto.org/ english/tratope/envire/ega_e.htm [https://perma.cc/9LKU-SENK] (last visited July 7, 2020) ("On July 8, 2014, a group of WTO Members began negotiations to establish the Environmental Goods Agreement (EGA), which seeks to promote trade in a number of key environmental products, such as wind turbines and solar panels. Since 2014, the number of participants in the EGA has grown, with the current total representing forty-six WTO Members."). 157. World Trade Organization, Ministerial Declaration of 14 November 2001, WTO Doc. WT/MIN(01)/DEC/1, 41 I.L.M. 746 (2002) [hereinafter 2001 Ministerial Declaration]. 158. Agreement on Trade-Related Investment Measures pmbl., Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex IA, 1868 U.N.T.S. 186, https://www.wto.org/english/docse/legal_e/18-trims.pdf [https://perma.cc/ZD7TC3MD] [hereinafter TRIMs Agreement]; see also Trade and Investment: Technical InformationAgreement On Trade Related Investment Measures, WORLD TRADE ORG, https://www.wto.org/ english/tratope/investe/investinfo_e.htm [https://perma.cc/HE62-9FYL] (last visited Aug 23, 2020) ("The Agreement on Trade-Related Investment Measures (TRIMS) recognizes that certain investment measures can restrict and distort trade. It states that WTO members may not apply any measure that discriminates against foreign products or that leads to quantitative restrictions, both of which violate basic WTO principles. A list of prohibited TRIMS, such as local content requirements, is part of the Agreement."). 380 The Geo. Wash. Int'l L. Rev. [Vol. 52 conducted on green technologies, including clean coal, wind power, energy-efficient lighting, and solar energy, among others, demonstrates that eliminating both tariff and non-tariff barriers can result in moderate increases in exchange or transfer of green technologies. 159 For example, if tariff barriers are removed, exchange or transfer of green technologies will increase by 7%; if both tariff and non-tariff barriers are removed, then a 14% increase in either the exchange or transfer is likely. 16 0 Another study predicts that if mitigation in the agricultural sector takes place through crop adaptation and changes in the proportion of global import shares, this will reduce climate-change induced losses by 55% in case of crop adaptation and 43% in case of changes in the proportion of global import shares. 161 In 2012, leaders of the Asia-Pacific Economic Cooperation (APEC) decided to "reduce applied tariff rates to 5% or less by the end of 2015" for environmental goods and products listed under the Annex C APEC List of Environmental Goods.1 6 2 However, from a South-South cooperation perspective, it is disappointing that both the Global North and developed countries still lead in most global resources production. 163 Another important international initiative to reduce tariffs on environmental goods or green technology is the Environmental Goods Agreement (EGA) launched in 2014 by the WTO. 164 EGA's agenda is limited to tariffs and goods, excluding services and other trade-related barriers. 165 Again, it is equally disappointing that most of the countries involved in negotiations belong to the Global North or high- income countries. 166 With negotiations on pause since 2016, the 159. WORLD BANK, INTERNATIONAL TRADE AND CUMATE CHANGE: ECONOMIC, LEGAL AND INSTITUTIONAL PERSPECTWrEs 72 (A. Sears & R Livernash eds., 2008). 160. Id. 161. Christophe Gouel & David Laborde, The Role of Trade in Adaptation to Climate Change, VoxEU (Feb. 6, 2019), https://voxeu.org/article/role-trade-adaptation-climatechange [https://perma.cc/7APG-ECQK]. 162. See ANNEX C - APEC List of Environmental Goods, AsIA-PAC. ECON. COOPERATION (Sept. 8, 2012), https://www.apec.org/Meeting-Papers/Leaders-Declarations/2012/2012_ aelm/2012_aelmannexC.aspx [https://perma.cc/CX4H-KN5J]. 163. See generally id. (listing environmental goods and the countries involved in their production). 164. Environmental Goods Agreement, supra note 156. 165. See Amanda Rosalia Aranda Novoa, Why New Tariff Codes Are Necessary to Improve Trade and Combat Climate Change, LSE US CTR. (Dec. 1, 2018), https://blogs.lse.ac.uk/ usappblog/2018/12/01 /why-new-tariff-codes-are-necessary-to-improve-trade-and-combatclimate-change/ [https://perma.cc/8SN8-B62S]. 166. Id. 2020 ] South-South Cooperation for Innovation 381 outcome of the negotiations is ambiguous in the current climate of uncertain global politics. 167 Nonetheless, to create a favorable environment for innovation, diffusion, and transfer of green technologies by expanding crossboundary trade opportunities, it is important to ensure that both tariff and non-tariff barriers are removed. Although Paragraph 31 (iii) of the 2001 WTO Ministerial Declaration urges "the reduction or, as appropriate, elimination of tariff and non-tariff barriers to environmental goods and services," 168 efforts so far are slow and seemingly inadequate. 169 One important reason behind the slow progress lies in countries' diverse views on defining environmental 170 Based on their products and services in a multilateral context. respective interests, nations have distinct opinions regarding whether "green" products or services should be deemed environmentally friendly according to their production process or application. 17 1 There is also disagreement about the approach to removing tariff and non-tariff barriers-while the Global North favors a "list approach," the Global South prefers a "project approach" for liberalizing or waiving tariff and non-tariff barriers for green goods and services. 172 In fact, technical complexities during negotiations to remove trade barriers arise from the "geographical structure of the industries involved."1 7 Today, predominantly high-income, developed countries of the Global North have comparative advantages in 174 Countries innovating and manufacturing green technologies. from the Global South lag behind in innovation and manufacture 17 5 of both environmental merchandise and green technologies. Hence, current negotiations addressing green technology transfer through removal of tariff and non-tariff barriers focus mainly on 167. See id. 168. 2001 Ministerial Declaration, supra note 157, ¶ 31 (iii). 169. See Novoa, supra note 165. 170. See id. 171. See id. 172. WTO Secretariat, Special Session of the Comm. on Trade & Env't, Synthesis of Submissions on Environmental Goods: Informal Note by the Secretariat, WTO Doc. TN/TE/W/63 (Nov. 17, 2005) https://docs.wto.org/dol2fe/Pages/FE_Search/FE_S_S009-DP.aspx?lan guage=E&CatalogueldList=78474,50662,61291,48084,64432&CurrentCatalogueldlndex= 1&FullTextHash=&HasEnglishRecord=true&HasFrenchRecord=true&HasSpanishRecord= true [https://perma.cc/FQA7-SJGR] (Canada, the European Communities, Japan, Korea, New Zealand, Qatar, Switzerland, China, Taipei and the United States support a list approach, while India supports a project approach). 173. See Corvaglia, supra note 53, at 136. 174. Id. 175. Id. 382 The Geo. Wash. Int'l L. Rev. [Vol. 52 the interests of high-income countries, facilitating North-South cooperation. 176 To address green technology transfer in SouthSouth terms, current WTO negotiations must accommodate interests of the Global South by removing trade barriers-first through ensuring Global South's participation in negotiations, and second through considering the environmental goods produced by the Global South during negotiations. Merely providing equal opportunities to both developed and developing nations by reducing trade barriers for environmental goods will neither foster favorable environments for green innovation in developing countries, nor facilitate South-South cooperation. To boost developing nations' technology capability and promote innovation, diffusion, and transfer of green technologies, WTO negotiations must provide preferential treatment for developing nations by removing tariff, non-tariff, and other barriers to environmentally friendly products and services and green technol- ogies generated by these countries. However, additional privileges may conflict with either the "principle of national treatment" (Article III) or the "most favored nation" (Article II) principle outlined in the WTO's General Agreement on Tariffs and Trade (GATT) 1994.177 Conversely, TRIMs acknowledges that certain investment mea- sures may restrict trade in goods. 178 The investment-related measures outlined in TRIMs are prohibited by WTO because they are inconsistent with the "obligation of national treatment" and "obligation of general elimination of quantitative restrictions." 17 9 For example, TRIMs stipulates "local content requirements and tradebalancing conditions or export restrictions," which are inconsistent 176. Id. 177. General Agreement on Tariffs and Trade 1994 arts. II, III, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1867 U.N.T.S. 190. National treatment of "[i]mported and locally-produced goods should be treated equally-at least after the foreign goods have entered the market. The same should apply to foreign and domestic services, and to foreign and local trademarks, copyrights and patTRADE ORG., https://www.wto.org/english/ ents." Principlesof the Trading System, WOR thewto_e/whatise/tif e/fact2_e.htm [https://perma.cc/QQC4-4WHW] (last visited Nov. 20, 2020). "Most-favoured-nation (MFN) . . . countries cannot normally discriminate between their trading partners. Grant someone a special favour (such as a lower customs duty rate for one of their products) and you have to do the same for all other WTO members." Id. 178. TRIMS Agreement, supra note 158, pmbl. 179. Id. art. 2. 2020 ] South-South Cooperationfor Innovation 383 with WTO principles.1 80 Banning the local content requirement is certainly unsuitable for facilitating innovation and diffusion of green technologies. Because there is evidence suggesting that "local content" in foreign investment boosts rates of innovation and transfer of technology,181 the local content requirement may be waived for green investment purposes. Indeed, doing so may further aid South-South cooperation. In this regard, TRIMs may permit a local content requirement for innovation and diffusion of green technology. Furthermore, despite potentially conflicting with the "national treatment" principle, TRIMs may also include "technology transfer" as an essential component for investing in innovation and manufacture of environmental goods, which could facilitate South-South cooperation. To mitigate the conflict between the "national treatment" principle and the "local content requirement" of "technology transfer" under TRIMs, and to mitigate the conflict between the "most favored nation" principle and providing preferential treatment by removing tariff and non-tariff barriers for green technologies produced by developing countries, the WTO regime may consider relying on principles of the global climate regime. For example, the WTO regime may consider adopting the principle of CBDR of the UNFCCC and Paris Agreement. Likewise, IPR flexibility for "public health," the proposed "local content" or "technology transfer" requirements, and preferential treatment for environmental products and services generated by developing nations may also be justified on the basis of pending "global emergencies." Indeed, the fact that climate change has already been deemed a "common concern of humankind" bolsters this justification.1 82 Moreover, both the UNFCCC and WTO have the common goal of sustainable development.1 83 While the principle of CBDR is an important tool in achieving sustainability,1 84 WTO Members should also take this principle into consideration when negotiating trade-barrier issues on environmental products and services. 180. Corvaglia, supra note 53, at 136 (citing M.L. de Sterlini, The Agreement on TradeRelated Investment Measures, in 1 THE WORLD TRADE ORGANIZATION: LEGAL, ECONOMIC AND POLITICAL ANALYSIs 437, 440 (Arthur E. Appleton & Michael G. Plummer eds., 2005)). 181. Corvaglia, supra note 53, at 137. 182. UNFCCC, supra note 1, pmbl. 183. Marrakesh Agreement Establishing the World Trade Organization, supra note 14, pmbl.; UNFCCC, supra note 1, art. 3(4). 184. Mahatab Uddin, Transfer of Environmentally Sound Technologies and Promotion of Sustainable Development in the Least Developed Countries, at 97 (Mar. 14, 2016) (unpublished Ph.D. thesis, Aarhus University). 384 The Geo. Wash. Int'l L. Rev. IV. [Vol. 52 LOOKING FORWARD To facilitate global innovation and transfer of green technology, it is essential to first encourage innovation by creating R&D-and innovation-friendly environments. Thereafter, it is vital to facilitate trans-boundary transfer of newly invented green technologies by fostering an environment for proper diffusion and transfer. Creating such environments for R&D requires public support at global, regional, and national levels. Globally, the Global Climate Fund (GCF) may play the most important role in this process. Furthermore, any international-level initiative that promotes R&D for green innovation will automatically facilitate global transfer of green technology. Creating favorable environments for diffusion and transfer of newly invented technologies is an additional and separate task with immense importance. Part IV.A and IV.B examine the factors involved in creating favorable environments for both R&D and the subsequent transfer of green technologies through removal of existing barriers. A. CreatingEnabling Environmentsfor Research and Development To facilitate development, diffusion, and transfer of green technologies by eradicating the existing barriers identified in Part III, it is essential that policymakers create R&D-friendly environments for innovation at global, regional, and national levels. If such environments are established on an international level, this will arguably create similar environments at regional and local levels. This process will gradually facilitate developing nations in improving their innovating capacity, with or without assistance, thus forging greater South-South cooperation. An initiative to foster R&D-friendly environments should first derive from the international legal regime on climate changepolicymakers should implement the relevant provisions of the Paris Agreement. For example, to address innovation and transfer of technology, the Paris Agreement pledges to reinforce the UNFCCC technology mechanism, which is mostly a knowledgesharing platform. 185 Essentially, the mechanism offers technical assistance to developing nations so that they can effectively adopt newly invented green technologies.1 86 The mechanism further 185. The Paris Agreement, supra note 1, art. 10(3). 186. Technology Mechanism, TT:CLEAR, http://unfccc.int/ttclear/support/technologymechanism.html [https://perma.cc/G67B-YW2U] (last visited Aug. 9, 2020). 2020 ] South-South Cooperationfor Innovation 385 plays a role in expanding global access to green-technology related knowledge and innovation, 187 and, above all, works as a "hub" for green-technology experts by promoting collaboration among experts in the relevant fields. 188 If the UNFCCC technology mechanism is able to advance its role as a global hub for green innovation based on the needs of individual countries, it would arguably be the first effective step towards the creation of a global environment that favors both innovation and transfer of green technologies. The proposed hub should be financed primarily by the international climate regime's official financial cooperation mechanism, i.e. the GCF. Other international development organizations and multilateral financial institutions (e.g., United Nations Development Program, International Monetary Fund, and the World Bank) may also assist in this process. Since these advancements will occur with support from public funds such as the GCF, innovation should be delegated to the public domain, for example, to open-source scholarly works. This will serve the purpose of avoiding IPR (or cost) barriers, which sometimes prevent developing countries from accessing requisite green technologies. The proposed hub is comparable to the "Eco-patent Commons," 189 WIPO Green of World Intellectual Property Organization (WIPO), 19 0 and the "Mission Innovation" project. 191 The Ecopatent Commons was established in 2008 by some of the world's largest companies (including IBM, Sony, Nokia, and Pitney Bowes) with a view to expand socio-economic benefits of eco-friendly or environmentally sound innovations. 19 2 Members of the Eco-patent Commons are expected to submit their patents for green innova- tion into a pool, permitting other contributors or business entities 187. Id. 188. Joshua D. Sarnoff, Intellectual Property and Climate Change, with an Emphasis on Patents and Technology Transfer, in THE OxFORD HANDBOOK OF INTERNATIONAL CLIMATE CHANGE Law 391, 394 (Kevin R. Gray, Richard Tarasofsky, & Cinnamon Carlarne eds., 2016). 189. Jo Bowman, The Eco-Patent Commons: Caring Through Sharing, WIPO MAG., June 2019, at 11, 11. 190. The Marketplace for Sustainable Technology, WIPO GREEN, https://www3.wipo.int/ wipogreen/en [https://perma.cc/YT35-HW93] (last visited July 7, 2020). 191. See Joint Launch Statement, MISSION INNOVATION (Nov. 30, 2015), http://missioninnovation.net/joint-statement [https://perma.cc/W8LE-UU4L] (explaining that member countries of Mission Innovate have come together to promote green energy and make its use affordable). 192. Wayne Balta, Welcome to the Eco-Patent Commons, CORP. Eco F. (Sept. 7, 2015), [https:// http://www.corporateecoforum.com/welcome-to-the-eco-patent-commons perma.cc/RYZ9-VYM6]. 386 The Geo. Wash. Int'l L. Rev. [Vol. 52 outside the pool to use their patents free of charge and open to further innovation. 193 That said, the Eco-patent Commons depend on voluntary initiatives by Member companies for contribution to the common pat- ent pool and the project is yet to bring the predicted success.1 94 From 2008 to 2015, only around 100 patents were added to the Eco-patent Commons. 195 The main drawback of this voluntary patent pool system is that companies may be interested to protect their valuable technologies through keeping them out of the patent pool, and may only be interested in contributing less-important patents or those that are set to expire. Nevertheless, this drawback could potentially be resolved by the proposed "global technology innovation hub," as the hub engages in open-source innovation. In 2012, the WIPO established WIPO Green, which aims to "to accelerate the development and deployment of green technologies around the world by connecting technology and service providers with those seeking innovative solutions to the environmental challenges they face."1 96 To facilitate diffusion and transfer of green technology, WIPO Green collaborates with diverse associations, banks, and other financial institutions as well as U.N. agencies like the CTCN.1 97 Furthermore, on November 30, 2015, the "Mission Innovation" project was launched in Paris with the objective of urging partici- pating countries to "reinvigorate and accelerate public and private global clean energy innovation with the objective to make clean energy widely affordable" through collaboration. 19 8 A number of developed and developing countries initially joined the project 199 agreeing to "double governmental investment in clean energy innovation" and enhance private sector involvement in "technology innovation" to ensure distribution of information on greentechnology R&D. 200 However, the project is voluntary and involves a limited number of countries that may be unable to address the global need for environmentally sound innovation, or, more 193. Id. 194. Id. 195. Id. 196. Philip Stevens, WIPO GREEN: The Place to Go for Green Tech, WIPO MAG., Feb. 2014, [https:// at 2, https://www.wipo.int/wipomagazine/en/2014/01/article_0001.html perma.cc/VV2L-2ZCS]. 197. See also The Marketplacefor Sustainable Technology, supra note 190. 198. Joint Launch Statement, supra note 191. 199. Id. 200. Id. 20201] South-South Cooperationfor Innovation 387 importantly, the need to transfer new technologies to countries in need of green alternatives 201 Again, the proposed "global technology innovation hub" could address both global needs, as the hub would necessarily be governed and run by the formal UNFCCC system, which guarantees worldwide participation. The innovation and diffusion of green technology is not entirely dependent on progress in the UNFCCC negotiations on technology. Research shows that "the lack of progress in climate negotiations on technology transfer has not prevented the international diffusion of low-carbon technologies to date, at least not towards fast-growing emerging economies." 202 However, this does not apply to other developing and least-developed nations because of 203 their "low participation in the recent economic globalization." The reason is partly that the global initiative for green-technology growth does not properly consider the innovation capacity of users, governments, and universities. 204 Another major loophole in the existing regime is the lack of attention given to South-South technology cooperation. 205 Hence, the "global technology innovation hub" should focus on facilitating both triangular and South-South collaboration, by not only working with the technology mechanism and frameworks enforced by the UNFCCC, but also collaborating with the GCF, WIPO Green, and other relevant U.N. agencies. Forging links with various regional financial and research organizations may also be effective. Support from climate and trade regimes including the GCF, WIPO Green, and other relevant U.N. agencies can enable the proposed "global technology innovation hub" to assist universities and research centers in developing nations to innovate green technologies. With the necessary financial support, experts in developing nations would be able to engage in technology growth. For example, a scientist in Bangladesh recently devised an invention that 201. Id. 202. Matthieu Glachant & Antoine Dechezlepretre, What Role for Climate Negotiations on Technology Transfer?, 17 CLIMATE POL'Y 962, 972 (2017). 203. Id. 204. Cf. Heleen de Coninck & Daniel Puig, Assessing Climate Change Mitigation Technology Interventions by InternationalInstitutions, 131 CLIMATIC CHANGE 417, 431 (2015) (explaining that "increased emphasis on user communities," "earmarked R&D funding" for research institutions and universities, and "support[ing] [governments] in developing policies" could help promote technological innovation). 205. Corvaglia, supra note 53, at 126. 388 The Geo. Wash. Int'l L. Rev. [Vol. 52 synthesizes a polymer from jute fibers; 206 this environmentally sound innovation can then be used to create polythene-like bags that will not have a negative effect on the environment. 20 7 In addition, innovations underway in developing countries with the GCF's tech- nology mechanism and financial support should become part of the public domain. Given that the Paris Agreement requires its Parties to adopt a "cooperative approach," 208 the proposed "global technology innovation hub" and collaboration among universities and research centers in developing nations may be an effective mode of estab- lishing cooperation. Such a "cooperative approach" 20 9 could be further ensured through adopting a mandatory provision requiring the parties to include their potential contribution to the "global technology innovation hub" and research collaborations with developing countries in their NDCs. This Article further proposes that when submitting NDCs, all Parties should stipulate their projected role in the promotion of green-technology innovation and transfer and national initiatives in creating an innovationfriendly environment for green technologies. Parties should also include the initiatives they aim to adopt to ensure international collaboration in creating an enabling environment for innovation and transfer of green technologies. In addition to the GCF's global support, regional financial organizations such as the Asian Development Bank, the Development Bank of Latin America, the Inter-American Development Bank Group, the African Development Bank, and the Islamic Development Bank should facilitate R&D for innovation. This is possible through taking joint initiatives with individual state or through ensuring collaboration with a group of states of the concerned region. States may also think of concluding R&D cooperation agreement where the above-stated financial organizations can play important role as a source of funding. At a national level, governments in developing countries should take initiatives to facilitate R&D in green-technology innovation. In this regard, developing countries can think of establishing green technology research centers at national level which will work in collaboration with leading universities and research institutes. National climate-change-man206. Forget Polythene! Scientist Invents BiodegradableAlternativefrom Jute, DAILY STAR (Apr. [https:// 8, 2018), https://www.thedailystar.net/frontpage/forget-polythene-1559578 perma.cc/7BAK-CCMV]. 207. Id. 208. The Paris Agreement, supra note 1, arts. 10(2), 10(6). 209. Id. 2020 ] South-South Cooperationfor Innovation 389 agement related funds or governments of concerned countries may provide funding for this purpose, given that climate change has become an essential part of national development activity. Furthermore, all countries are also committed to fulfilling the U.N. SDGs-a process that will become smoother through on-going innovation and deployment of green technologies at a national level. B. CreatingEnabling Environmentsfor Transfer of Green Technologies Creating environments that enable both diffusion and transfer of green technologies must meet two requirements: first, the existing barriers that hinder green-technology transmission must be abolished; and second, regulations that facilitate the transfer of green technologies must be enacted. To remove existing barriers, developing countries should seek assistance through various means, for example, by consulting the UNFCCC's technology mechanism or seeking aid from the CTCN to overcome the lack of access to information and requisite skills. Countries may also receive support from WIPO Green, which should work in conjunction with the UNFCCC's technology mechanism to fulfill the extensive needs of developing nations. At the regional level, all countries should cooperate by sharing R&D information, perhaps under the guidance of existing regional organizations. At the local level, governments should promote access to important information and skills by both public and private entities. Developing countries may also seek assistance from the GCF to overcome barriers such as lack of access to required infrastructure and financial resources. The proposed "global innovation mechanism" could also play a role in removing these barriers. Furthermore, at the regional level, financial organizations should offer financial assistance to entities that focus on innovation of green technologies. On the other hand, institutional barriers, which encompass existing IPR and international investment-related regulations, should be removed at a global level through joint or collaborative efforts of both climate and trade regimes. For this purpose, the UNFCCC, through its technology mechanism and frameworks, should collaborate with the UNOSSC, WGTTT, and WIPO to devise harmonized provisions that can facilitate South-South cooperation in the innovation, diffusion, and transfer of green technologies. Given that the Paris Agreement acknowledges the necessity of innovation and application of the "best available sciences" to combat climate change, the climate regime has the impetus to 390 The Geo. Wash. Int'l L. Rev. [Vol. 52 make the proposed cross-connection successful. At the regional level, existing regional organizations should assist countries that require aid to remove legal, regulatory, and policy barriers to technology transfer. At the national level, governments should prioritize removing existing legal and institutional barriers that impede export or import of clean resources. Other initiatives that require regulations for facilitating technol- ogy transfer should also be made at global, regional, and national levels. Internationally, both the climate and trade regimes should work together to craft legal provisions that offer preference or incentive for technological transmission. These provisions should allow flexible regulations that facilitate trans-boundary trading of green technologies, flexible licensing provisions for IPRs, and favorable environments that enhance FDI in green-technology sectors. In fact, since regulatory drivers of development and diffusion of technological innovation influence the two other drivers (i.e., operation drivers and market drivers), joint efforts of both global climate and trade regimes should also focus on creating regulations that stimulate operation and market drivers of green technology. Likewise, regional organizations should adopt similar regulatory measures to ensure enhanced trading, licensing, and FDI for the green technology sector. Initiatives by countries of the Global South can vigorously facilitate South-South cooperation in green technology innovation and development. For example, European Union and NAFTA members successfully transferred green technology to other Member countries after adopting similar regulatory measures, perhaps due to the harmonious trade cooperation between countries operating under the organizations. Finally, at the national level, all countries-developing countries in particular-should adopt a national policy framework or laws stimulating public and private sectors to invest in green-technology innovation, thus forging future market success. Countries should seek regional- and global-level assistance in framing green-technology friendly regulatory measures. V. CONCLUSION A lack of green technology remains a major hindrance for the Global South in the fight against climate change and quest for sustainable development. Evidently, no country can. solve this crisis 2020 ] South-South Cooperationfor Innovation 391 alone. Transnational innovation systems 210 and concerted efforts by international organizations 2 11 heavily influence technological innovation. In this regard, the Global South's potential for innovation and transfer of green technologies is a major pathway towards combatting climate change and facilitating sustainable development. The Global South should not be regarded solely as a receiver of green technologies because it has the potential to become a major player of innovation and equitable distribution of technol- ogy, and thus should be the focus of future legal regimes. However, reaching the Global South's potential is only possible through collaborative efforts by global climate and trade regimes. The global climate regime should take the primary initiative while the global trade regime should extend its hand by providing flexibility geared towards the creation of environments that support both innovation and transfer of green technologies. 210. See generally Gosens et al., supra note 47, at 378-88. 211. See generally Suzuki, supra note 9, at 229-40 (explaining the essential roles of international institutions in facilitating green energy technologies development).