INTRODUCTION

The establishment by the 1990 amendments to the 1987 Montreal Protocol of a financial mechanism to address ozone depletion marked an important turning point in international environmental law. In the subsequent decades, the rules on finance and technology transfer have developed significantly and substantively, together with legislative and judicial consideration of the relationship between intellectual property rights and environmental protection. This has occurred notwithstanding the early concerns of some industrialised countries that the establishment of the Montreal Fund would adversely prejudice future developments. Financial resources, technology transfer and intellectual property were central issues at UNCED and of the two treaties signed at UNCED. As described in this chapter, the 1992 Climate Change and Biodiversity Conventions – as well as subsequent instruments on drought and desertification (1994), climate change (1997), biosafety (2000) and persistent organic pollutants (2001) have further elaborated the principles established under the Montreal Protocol and its amendments. Related developments – particularly in the context of the activities of the multilateral development banks, the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs), the European Patent Convention, the 2001 International Treaty on Plant Genetic Resources for Food and Agriculture and the 2010 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from Their Utilisation (2010 Nagoya Protocol) – have added to the broadening range of legal issues which are touched by, and increasingly integrated with, international environmental concerns.

These three subjects – financial resources, technology transfer and intellectual property – occupy a central place in the legal arrangements of international environmental law, at the regional and global levels, and will determine to a considerable extent whether the substantive protections put in place can be achieved (in that regard, the experience with the Montreal Protocol provides some grounds for optimism, although issues like climate change adaptation demand financial resources and technical assistance of a much greater order of magnitude). The consequence is that international environmental lawyers will necessarily find themselves facing the complex (and often black letter) legal issues that emerge as a result of an increasingly integrated approach to environmental protection and economic development. It remains to be seen, in the process of cross-fertilisation, what the nature of the integrated relationship will be, and the manner in which balance will be achieved.