The TRIPS Agreement and the Kyoto Protocol

The need to develop a stronger environmental conservation regime has led to the development of two major international agreements which have come to impact the way that governments conduct themselves in matters concerning sustainability. These agreements are the TRIPS Agreement and the Kyoto Protocol which have ensured that guidelines for protecting the environment through the efficient use of energy as well as innovative technology are implemented. In recent years, it has been recognized that dealing with climate change is quite a difficult task that will require massive investment and the development of new technology. Both of these agreements provide guidelines to both the public and private sectors concerning the need for the development of newer technologies which are meant to preserve the environment through the lowering of carbon emissions to the atmosphere. However, TRIPS and the Kyoto Protocol are quite distinct when it comes to matters concerning their application to energy and innovation. This paper seeks to show that the distinctiveness between these two agreements in matters concerning energy and innovation is as they should be because they complement each other.

The increasing effects of global warming have brought about a situation where it has become essential for governments to create collaborative policies which are meant to address the problem. These policies include encouraging the private sector to create green technologies to help in fighting, or hindering the increase of environmental problems that are currently being experienced all over the world. There has developed a need to ensure that the existing innovative structures are used for the purpose of making sure that green technology is made a part of everyday life. However, there have also been concerns that environmentally friendly technologies might prove to be too expensive and that even though they might be made more affordable, they might end up being only available in the developed world. The poverty in most developing countries means that they are hardly able to afford newer technologies which can help them fight environmental change; making their role even less constructing in the fight against climate change. Some of the countries that are most vulnerable to climate change risk not being able to combat it as a result of a serious lack of green technology that might be able to make a difference. Therefore, the TRIPS Agreement, while having some merit, has come to be criticized because of the belief that it might end up not being able to ensure that developing or vulnerable countries are not able to afford the technology that they need to make significant contributions to sustaining the environment. The copyright agreements that are contained within this agreement make it extremely difficult for new technology to be exported from developed to developing countries, not only as a result of higher costs, but also because of the patents which give exclusive ownership to the creator of new technology.

In conjunction with other agreements, such as the Kyoto Protocol, the TRIPS Agreement can be extremely effective. This is because it can be adapted to the diffusion of green technology all over the world in a short period. In the near future, there is likely to be high demand for green technology throughout the globe and the TRIPS Agreement is the most practical because its provisions can be easily adapted. Any changes to its current provisions might end up being a hindrance because many countries, especially developed ones, might end up feeling that the measures taken are too strict and seek to withdraw from it. Most discussions that have been conducted concerning the TRIPS have focused mainly on its ability to meet the challenges that have come about as a result of the swift development and diffusion of green technologies. These fears are well founded considering that most countries are often extremely protective of new technologies and might find the provisions within the agreement not to serve their interests well. However, despite the concerns, it is essential to note that the TRIPS’s provisions seem to be balanced enough to provide guidance concerning the best way through which technology can be disseminated with few problems. This is especially the case where it provides guidelines concerning how technology can be moved without too many legal hurdles as long as the owner of copyright or patent is able to receive his due. The Kyoto Protocol, on the other hand, complements the TRIPS because it binds those states that are part of the treaty to ensure that they work towards the achievement of greenhouse gas emissions over a certain period. Moreover, it recognizes that global warming is a reality and that it is human activity, especially the release of carbon emissions into the atmosphere, which have brought about this problem. However, in order to keep greenhouse emissions down or at controllable levels, it has become important that innovative technologies that assist in this endeavor be created and widely distributed so that the reduction of emissions can be achieved as swiftly as possible. This is where TRIPS comes in because it makes it possible for green technology to be created in such a way that ensures that it is distributed to those areas where it is needed the most with minimal hindrance. The current provisions in TRIPS can easily be adapted to make sure that the objective of the Kyoto Protocol are achieved; meaning that it is sound as it is and should not undergo any radical changes that might alienate some of its parties.

A close study of the TRIPS shows that the provisions concerning intellectual property rights found within it are not a major hindrance. This is because these provisions allow for the achievement of the Kyoto Protocol with the assistance of existing green technologies without necessarily having to go through the problem of developing newer ones. The main hindrance that has been recognized is the lack of global availability of finance which might play a significant role in helping developing countries attain some of the technology that might be helpful in reducing their carbon emissions. While most developing countries are not considered to be significant greenhouse gas emitters to the atmosphere, these countries are increasingly adapting to global trends as a result of globalization. This adaptation means that they have a need to ensure that they achieve their developmental goals which are forcing many of them not to set up serious regulations to their greenhouse gas emissions. In addition, the massive population growth found in these countries coupled with the growing demand for manufactured goods has made it difficult for them to take significant steps towards the achievement of greater steps towards protecting the environment. Therefore, it has become essential for a loosening of the restrictions that have been set on availability of finance to developing countries since it will help them to achieve a level of success in reducing their carbon emissions through the greater affordability of green technology. A second barrier which is brought about within the provisions of TRIPS is the matter concerning technology transfer which is likely to have a significant effect on the way that the Kyoto Protocol is implemented, in both developing and developed countries as a result of the possible restrictions. The Kyoto Protocol puts most of the responsibility for the greenhouse emissions that have caused global warming on developed countries with each having a target to achieve in the reduction of these emissions over a certain period. In the near future, developing countries will also end up having similar obligations, meaning that enabling frameworks have to be put in place to make sure that carbon emission reduction is achieved. However, a hindrance to these objectives is the currently, in most developing countries, there are few enabling frameworks which discourages the private sector from being active players in technology transfer. Therefore, the lack of enabling frameworks might end up proving to be a hindrance to the implementation of both TRIPS and Kyoto Protocols, but these can be remedied once the problem is fixed.

The problem of lack of enabling frameworks in developing countries has to be dealt with as swiftly as possible because it hinders both TRIPS and Kyoto Protocols from fulfilling their objectives. Private companies in the developed world are the ones that, through innovation, develop and distribute technology that can be used for the purpose of saving energy while at the same time promoting a reduction in carbon emissions. However, these companies are profit making and they only seek to enter those markets that are believed to be best suited to maximize their incomes. Developed countries have for the most part ensured that there are enough enabling frameworks in place to promote the distribution and circulation of green technology; making them extremely viable markets. This is not often the case in developing countries where the lack of enabling frameworks hinders the distribution of green technology. Without the proper framework, it is possible that developing countries might have difficulties in fulfilling their obligations concerning environmental conservation. The countries have a hard time keeping their emission levels down not only because they are less developed and need to catch up, but also because they make use of energy sources that bring about greater emission levels. In order to ensure that they reduce their carbon emission levels, they require the advanced green technology from developed countries but this has to be affordable; a situation which serves as a hindrance for TRIPS although it can be repaired within its current framework. Therefore, within the current framework, while the Kyoto Protocol creates targets which have to be achieved by each of country, TRIPS, despite following a distinct means of application, facilitates the technology needed to ensure that these targets are met. Most emerging economies have chosen to undertake serious initiatives to ensure that they reduce their carbon emissions through the adoption and implementation of the Kyoto Protocol, especially when it comes to the use of energy. However, their actions have not been recognized by their more developed partners, such as the United States, whose policies tend not to put such instruments as the Kyoto Protocol at the forefront of their national emission reduction objectives. Countries such as China and its fellow emerging economies have committed to ensuring that they undertake voluntary obligations which will make it possible for them to achieve their development goals while at the same time catering to their responsibilities concerning the environment. This is where such World Trade Organization (WTO) agreements as TRIPS come in because they are the means through which the WTO can take a direct hand in making sure that it ensures the removal of all hindrances to the flow of finance and technology through instruments that are legally binding.

The climate change regime that has been proposed by the Kyoto Protocol is one which provides numerous opportunities that will ensure the creation of initiatives where renewable energy technologies are widely distributed. This regime provides conditions which have to be implemented in order to achieve developmental goals while at the same time allowing for the protection of the environment. Breidenich and others state that among the initiatives proposed by the Kyoto Protocol is the need for signatories to ensure that the commit themselves to environmental sustainability through the mitigation of greenhouse gases within their jurisdiction. Furthermore, it is a requirement that they each conform to their national priorities in such a way that they are able to ensure the achievement of the necessary infrastructure and the development of local capacities that can help to decrease greenhouse gas emissions. These initiatives are designed in such a way that each country is able to undertake the burden of climate change by ensuring that they are able to promote the development of internal initiatives to combat carbon emissions to the atmosphere. As localized initiatives, they allow countries to push themselves to their greatest limit when it comes to dealing with environmental issues with each country setting up its own targets and seeking ways to achieve them. Despite its not binding developing countries with any limitations concerning carbon emissions to the atmosphere, it remains an important tool for ensuring that environmental sustainability becomes a part of the agenda of these countries. Through its proposal for flexible instruments to help in the fight against climate change, many governments in developing countries have been able to come up with policies which significantly reduce their emissions without adversely affecting their developmental goals. Among the flexible instruments mentioned is the Clean Development Mechanism which, alongside the possibility of initiatives such as emissions trading, has created numerous opportunities for developing countries to take on the economic incentives that come about as a result. These instruments, in conjunction with the binding agreements made by developed countries, have essentially been aimed at creating a global initiative whose purpose is to ensure that there is little disruption to the environment through the stabilization of greenhouse gases in the atmosphere. The levels of greenhouse gases in the atmosphere have to be kept as low as possible so that they do not end up causing an acceleration of climate change that might bring about a collapse of the current living conditions.

 The need to develop energy efficiency in order to combat climate change has been addressed through the development of the joint implementation tool of the Kyoto Protocol. The idea of a joint implementation is where activities are conducted in a host country, normally a developed one, with sponsorship coming from a fellow developed country. The most common form of joint implementation is where the donor country finances part of the emission reductions; making it possible for them to support the overall global emissions reductions. This is an instrument which is extremely economical especially considering that while developed countries, as a result of their commitments, face quite high emissions reduction costs. However, through the adoption of joint implementation projects, it becomes possible for some of these costs to be cut because the host country carries the burden of a majority of the costs while the donor country only covers part of the cost. Furthermore, the joint implementation procedure can be more easily monitored because most of the process concentrates on specific projects rather than more general ones that might be quite complicated to calculate in the end. The proper development of joint implementation means that there is constant need for advanced technology which has to be used for the purpose of accurately measuring the level of emissions being released into the atmosphere at a given time. This is especially the case with energy consumption which has become the most common way that carbon is released into the atmosphere. It has become essential to ensure that new technology such as electric vehicles and the use of solar energy is encouraged so that these emissions can be reduced enough throughout the world to secure the environment from radical climate change. The TRIPS Agreement in its current form is highly effective in addressing these issues and the seeming failures in the implementation of this agreement is not as a result of any errors within the text, but the unwillingness of some of the parties involved to take them seriously. In addition, these agreements can positively complement each other because while the Kyoto Protocol essentially provides guidelines concerning the best way through which to ensure the reduction of emissions, the TRIPS Agreement helps in the easing of green technology transfers through the use of established frameworks. Therefore, when it comes to their application to matters concerning energy, the diversity of these agreements allows for greater avenues for the development of clean energy while at the same time promoting the creation of greater access to technology which can be used in creating clean energy and reducing carbon emissions to the atmosphere.

The application of energy and innovation practices when it comes to ensuring the sustainability of the environment has become a matter of debate especially in the Kyoto Protocol. This is because there have been concerns that while some projects that are endorsed might contribute significantly in the reduction of greenhouse gas emissions, they may also entail some serious environmental problems in future. This is especially the case with nuclear energy which has been promoted as a source of energy which produces no greenhouse emissions into the atmosphere while the nuclear plant is operational. However, once these plants are decommissioned and there is need to ensure that the waste is well disposed of, it will become an extremely difficult undertaking. It is also essential to note that when it comes to nuclear energy use, there have also been significant concerns about the high risks that might be brought about as a result of nuclear accidents as well as problems that might arise through nuclear proliferation. This is an issue which is not addressed by the Kyoto Protocol and not addressing such a matter of importance is a serious oversight which might lead to disastrous results at a later period. Moreover, there are provisions within the Kyoto Protocol which make it imperative for countries, especially in the developed world to make serious commitments towards ensuring that there are significant emissions reductions. However, these provisions might end up not being effective as a result of the allowances which are given to some countries to increase their emissions while others are committed to reductions. In order to fight climate change through the effective use of technology that ensures energy efficiency, it is necessary for all nations in the world to commit to the reduction of greenhouse gas emissions. They should all commit to the reduction of fossil fuel use and seek the adoption of newer technologies such as electric cars so that it can be possible to reduce the carbon emissions to the atmosphere. In relation to the efficient use of energy, diverse non-governmental green organizations have called for the creation of a list of positive technologies which can be used for the purpose of reducing emissions and promoting environmental sustainability to combat climate change. The listing of such technologies will require that they are widely distributed and this endeavor can only be assured through the application of the TRIPS Agreement whose main purpose is to promote intellectual property rights.

The obligations to member states under the TRIPS Agreement are applied equally, meaning that they have to constantly ensure that they implement its provisions. However, there has been some concern that this agreement might hinder the transition of developing countries to cleaner energy technologies. These concerns are extremely pertinent because they come about from the realization that TRIPS might end up creating more hurdles for these countries in their path towards the achievement of their developmental goals. Green energy technologies are being developed in a constant basis with the newer ones functioning better than their predecessors. However, the protection of intellectual property rights as proposed by TRIPS makes it difficult for developing countries to have greater access to these technologies. Most developing countries have neither the funding nor the frameworks needed to ensure that they are more receptive of the new procedures proposed by TRIPS and despite the extensions that they have been given to transition, they are not able to do so. The lack of legal and technical expertise in developing countries has made it difficult for them to implement the provisions of TRIPS and these have instead ended up not incorporating the numerous flexibilities that this agreement has to offer. Among the flexibilities that have yet to be implemented in most developing countries are use of broad research and parallel importation which have led to a failure in effective implementation. Those that have implemented these provisions have ended up creating strong intellectual rights monopolies which have been detrimental to their ability to achieve greater efficiency in attaining technologies that might be helpful to them.

This paper has shown that the distinctiveness between the Kyoto Protocol and the TRIPS Agreements in matters concerning energy and innovation should be left as they are because they complement each other. The increasing effects of global warming have brought about a situation where it has become essential for governments to create collaborative policies which are meant to address the problem. Therefore, in conjunction with other agreements, such as the Kyoto Protocol, the TRIPS Agreement can be extremely effective. Furthermore, a close study of the TRIPS shows that the provisions concerning intellectual property rights found within it are not a major hindrance. However, the discussion above has shown that the problem of lack of enabling frameworks in developing countries has to be dealt with as swiftly as possible because it hinders both TRIPS and Kyoto Protocols from fulfilling their objectives. The climate change regime that has been proposed by the Kyoto Protocol is one which provides numerous opportunities that will ensure the creation of initiatives where renewable energy technologies are widely distributed. Moreover, the need to develop energy efficiency in order to combat climate change has been addressed through the development of the joint implementation tool of the Kyoto Protocol. Finally, the application of energy and innovation practices when it comes to ensuring the sustainability of the environment has become a matter of debate especially in the Kyoto Protocol. This is supported by the TRIPS Agreement where obligations to member states under are applied equally, meaning that they have to constantly ensure that they implement its provisions.