by nathan thanki (march 2011)

When astronauts first looked out the window of their spacecraft onto the only planet they had ever known, what they would have seen is a thin blue layer enveloping the globe. Without this layer, life on earth would probably not exist. The stratospheric ozone layer contains 90% of the world’s known ozone (Chasek et al 164), and is life giving because it absorbs ultraviolet radiation, large amounts of which damage all forms of life. Alarm was raised in the 1970s about the state of this protective layer when scientists such as Mario Molina and F. Sherwood Rowland discovered that chemicals, including chlorofluorocarbons (CFCs) were destroying ozone molecules (Chasek et al 164) (Mossos 1). The discovery that CFCs – as well as halons, carbon tetrachloride, methyl chloride, methyl chloroform, and methyl bromides (collectively grouped as ozone depleting substances [ODS]) – were so damaging to the ozone, made worldwide headlines. Not all the reactions to this new environmental problem were reactions born of concern. CFCs are important to various industries; as “refrigerants, propellants, insulators, and solvents” (Thoms 2), and so industries that provided or used CFCs grouped themselves together in The Alliance for Responsible CFC Policy, in an attempt to prevent or delay CFC regulation (Thoms 2). However, all the governments of the world were forced to act in 1986, after further scientific research revealed that a hole had been forming in the ozone layer over Antarctica: the result of which is the much celebrated Montreal Protocol on Substances that Deplete the Ozone Layer. It is usually hailed as a “giant step forward” (Thoms 3) because the global community identified a problem, and agreed to reduce the causes (in this case CFCs – reduced by 50% below 1986 levels by 2000), making it one of only two multilateral environmental agreements – the other being CITES – that have “functioning and active compliance mechanisms” (Victor 14). It also has a mechanism for FTA that has been the model for many environmental regimes since.

An effective treaty is one that: many (ideally all) actors are party to, has timetables for achieving goals, has a mechanism to ensure compliance, has a financial tool that allows Parties which wish to comply to do so without damaging their economy, and perhaps most importantly and effective treaty is one which is able to evolve alongside the problem is wishes to solve. To understand how effective the ozone regime has been, and how it could be more so, we must take a closer look at the history and details – especially measures for compliance and FTA – of the Montreal Protocol.  

Vienna Convention for the Protection of the Ozone Layer

Before a protocol could be made, there needed to be a framework for negotiating. This process began in 1977 when the international community, responding to concerns about the ozone, commenced the political definition of the problem, and then in 1982 – the bargaining process. This lag time was partly down to a lack of scientific evidence and certainty about exactly how ODS interacted with the ozone (Chasek et al 165). However, by 1985 the framework convention (the Vienna Convention for the Protection of the Ozone Layer) was agreed on the middle ground between the lead states (US, Canada, Norway, Sweden, Finland, Suisse) and the veto states (EC, Japan, Brazil, China, India, Soviet Union). Initially, no compulsory CFC reductions were mentioned (Chasek et al 165). The Convention did set up the possibility of renewed negotiations – if new scientific evidence came to light. That evidence came in the shape of the British publication which revealed the ozone hole, and the negotiations resumed – culminating in 1987 with the Montreal Protocol.

Montreal Protocol: if at first you don’t succeed…

But what do we deem the outcome of those negotiations to be today?

“The Montreal Protocol puts limits on the production and consumption of ozone-depleting chemicals, creates an administrative scheme to enforce these limits, and requires periodic assessments of these limits. The Protocol also requires that all countries bound by its provisions must ban exports and imports of ozone-depleting substances on a staggered basis to and from countries that are not parties to the Protocol. From its initial 24 signatory nations, there are now 188 countries that have ratified the Montreal Protocol and its timetable to reduce and phase out consumption of ozone-depleting substances” (Mossos 2).

That being said, the original result, in 1987, was relatively weak: it “addressed only the eight most widely produced CFCs and halons, neglected to require that alternatives to the controlled chemicals must not damage the ozone layer, included no provisions for independent monitoring of ODS production and use, and contained no real provisions for providing FTA to developing countries” (Chasek et al 166). However, part of the strength of the Protocol is its flexibility – there have been five amendments since 1987 (London 1990, Copenhagen 1992, Montreal 1997, Beijing 1999, Montreal 2007). Each of these amendments built upon the success, and tried to rectify the failures of the last.

For example, the London Amendment created the financial mechanism – the Multilateral Fund – which was a crucial for developing countries involvement in the regime: without FTA, countries like India and China argued, there was no way they could be party to the protocol. Because of their potential to expand their CFC market, a regime without such developing countries would be weak. The fund has encouraged developing countries to accept accelerated reduction timetables at least partly because $2.3b have been distributed so far – inspiring confidence in future FTA to aid CFC phaseout (Chasek et al 168). Other agreements in London included adding 12 new chemicals to the list, and among 53 countries; banning CFCs earlier than expected, in 2000  (Mossos 6).

 Two years later in Copenhagen, Parties agreed to include Hydrochlorofluorocarbons (HCFCs) and methyl bromide in their phaseout scheme, as well as the significant measure of creating the Implementation Committee (IC), which has been instrumental in ensuring compliance. Then, in Montreal for the 10^th anniversary of the Protocol, Parties accelerated methyl bromide phaseout and introduced an import/export ban. This was in response to a developing black market, and included a worldwide licencing system (Mossos 7). Methyl bromide was to be phased out by 2005 – however the United States “championed a significant loophole in the ozone regime that allows parties to continue using methyl bromide for ‘critical agricultural uses’ even after the phaseout date” (Chasek et al 169). Further progress was made in Beijing 1999, as the US relented to HCFC regulation: introducing a ban in trade with non-Parties to the Copenhagen Amendment. A new chemical – bromochloromethane – was added to the list of chemicals to be phased-out, and exemptions for the use of methyl bromide when quarantining ships were reconsidered to require reporting (see Article 7 of the Protocol) the amount used. This was supposed to help limit unnecessary use, and possible illegal siphoning  (Chasek et al 170) (Mossos 7).

The flexibility of the regime in constantly amending itself in light of new events has culminated in a Protocol that has “led to an eighty-five percent reduction in the production of those gases that most damage the ozone layer” (Thoms 3). The gradual phaseout has gone from Parties simply not exceeding their level of CFC and halon consumption during 1986  (UNEP 6) to ensuring that their “level of production of the controlled substances in Group I of Annex A for the basic domestic needs of the Parties operating under paragraph 1 of Article 5 does not exceed zero” (UNEP 8).

Effectiveness

So, why is the Montreal Protocol considered to be one of the most successful multilateral environmental agreements? Commentators, such as Laura Thoms, claim the success of the Protocol can be summed up in 5 points: “(1) international scientific cooperation and consensus; (2) an incremental policy process; (3) the targets and timetables approach; (4) involvement of a multilateral institution; and (5) recognition of the common but differentiated responsibility principle for developing nations” (Thoms 4). To that list, I add the creation of the aforementioned IC (which ensures compliance), and from that list I highlight the “incremental policy process” (essentially the built-in flexibility of the amendment procedure, already discussed) and the actual recognition of common but differentiated responsibilities – seen most clearly in Article 5 as well as the ground-breaking Multilateral Fund. Article 5 articulated the principle of different responsibilities in a flexible way, flexibility that lends to the regime a sense of fairness within compliance.[1] Article 5 permitted developing countries to continue and increase their use and production of ODS, even though the obvious goal of the entire regime was to reduce such substances. The point here is that an iron fisted blanket regime would only serve to set up impossible hurdles for developing countries, in the unlikely event that they would even join. The technologies to replace ODS existed – indeed it was the development and accessibility of these technologies in developed countries such as the USA, and eventually the EU, that allowed them to lead the regime – so developing countries felt entitled to request technology transfer. The goal was, after all, to eventually wean the entire world off ODS and save the ozone layer.

The Multilateral Fund

The Multilateral Fund for the Implementation of the Montreal Protocol, established at MOP2 in London, 1990, was central to the success of the entire regime. As is now characteristic of all multilateral environmental agreements, a main point of contention surrounding financial and technical assistance has to be overcome in order to find success. It is at this point that environmental and developmental policies collide, with the global South generally concerned that participating in a regime will cost them financially. Therefore, they require some kind of financial aid in order to quell an environmental problem – but this aid must be in addition to existing aid for development. The Multilateral Fund paved the way for the Global Environment Fund and for regime strengthening within the Vienna Convention. The original Protocol had no special mechanism which could aid developing countries in compliance (Mossos 4). As it now stands in Article 10, paragraph 3 of the Protocol, the fund shall:

“(a) Meet, on a grant or concessional basis as appropriate, and according to criteria to be decided upon by the Parties, the agreed incremental costs;

(b) Finance clearing-house functions to:

(i) Assist Parties operating under paragraph 1 of Article 5, through country specific studies and other technical co-operation, to identify their needs for co-operation;

(ii) Facilitate technical co-operation to meet these identified needs;

(iii) Distribute, as provided for in Article 9, information and relevant materials, and hold workshops, training sessions, and other related activities, for the benefit of Parties that are developing countries; and

(iv) Facilitate and monitor other multilateral, regional and bilateral co-operation available to Parties that are developing countries;

(c) Finance the secretarial services of the Multilateral Fund and related support costs”

(UNEP 33)

The Fund, when taken into consideration with the two-tiered timetable for phaseout, is a clear display of the principle of “common but differentiated responsibility.” Every country is required to cease ODS production and consumption (excluding agreed exceptions), but some developing countries will be assisted financially and technically, and will be given more time to implement phaseout. Also agreed at London was the technical half of FTA – something developing nations fought tooth and nail for as “they felt that it was inequitable for them to be denied the CFC-based technologies that played an important role in the prosperity of industrialized nations” (Thoms 6).

Compliance measures

Regardless of the benefits to humanity and planet, sometimes states do not take action such as complying with a legal international treaty such as the Montreal Protocol. Approaching the problem with a sort of carrot-and-stick combination solution, the Parties decided to “threaten trade sanctions against countries that do not join the regime and reward the developing countries that do join with compensation. Faced with those external incentives, no smart government would stay outside” (Victor 6). Indeed, the threat of sanctions and the allure of aid were so effective that now 196 countries are a party to the Protocol (Chasek et al 176). Compliance measures in “stick” form were strengthened at MOP-4 in Copenhagen, with the creation of the Implementation Committee. The IC identifies which countries were failing to report data on use of ODS, as they are obliged to. Essentially, the IC manages the Non-Compliance Procedure of the Protocol. One criticism of the IC, however, is that it was “effective only when parties found it easy to comply. In tougher cases, data were supplied only when the IC could link performance to other benefits of the Protocol – in extreme cases, expulsion from the Protocol's Multilateral Fund (MLF) that compensates developing countries for the cost of complying with the Protocol” (Victor 7). What helped compliance was not simply down to one formal mechanism, but rather a collection of “formal, dedicated procedures and ad hoc, informal ones” (Victor 8). Indeed, “these formally established means of handling noncompliance have been effective only because they were linked to other mechanisms for delivering rewards and sanctions” (Victor 8). However, the combination has worked – countries are reporting their usage and production, and are sticking to or even going beyond the commitments to phase-outs.

Lessons to learn

Although the Montreal Protocol is considered to be a prime example of an effective environmental treaty, it is by no means perfect. A major criticism is that the protocol has essentially created a black market for trading ODS, thus undermining the entire aim of the regime. It has also been criticised for “inefficient allocation of pollution among signatories, improper emphasis on CFC use and not CFC emissions, implicit punishment of those countries that accelerate their reduction of CFC use, and loopholes created by not achieving unanimous acceptance of the Montreal Protocol” (Victor 6). The question therefore is this: what can be done to improve the regime?

In terms of improving compliance in any environmental regime, several measures can be taken (Chasek et al 301). Firstly, awareness and concern are essential. With no media coverage, the general public views the ozone problem as solved, rather than the on-going, evolving issue that it is. As it stands, corporations “continue to manufacture these substances [CFCs] in countries where it is legal to do so. There are still countries that are not members to the Protocol who are able to freely produce as many CFCs as they want, with the assistance of DuPont, LaRoche, Allied Signal and Elf Atochem” (Mossos 7). Parties and corporations that fail to comply may reconsider if large amount of negative publicity were raised, and protests and civilian boycotts began. As part of a recurring theme in environmental regimes, better FTA could be provided. Although the Fund has proved key to what success the regime has had, more funds and better technical assistance are always useful in improving compliance. There are a variety of ways in which funds can be increased: forgiving debts, eliminating counterproductive subsidies, generating funds from markets and taxes (Chasek et al 313).  On the other side, more and stricter stick measures could be employed – such as trade sanctions against non-compliers (although confrontation with the WTO would likely arise). Also, monitoring and reporting can be improved further. Improvement in this area will result in better levels of domestic implementation (Chasek et al 303). This would also aid in limiting the black market of ODS. Coordination between the Protocol and other environmental regimes should also be addressed. For example, many ODS are also greenhouse gases – and as such are addressed under the framework convention on climate change as well as under the Montreal Protocol. In fact, the FCCC may learn from the success of the Vienna Convention.

These improvements could make the regime a lot more effective in implementing the decision to eliminate CFCs and other ODS, but that should not detract from the effectiveness of the Protocol. Thanks to a flexible structure, the Protocol has been able to adapt to changes in the political arena – for example the collapse of the Soviet Union – that impacts directly the possibility of achieving its goals. The Fund ensures that developing countries are able to live up to their common but differentiated responsibilities without facing financial ruin, while the IC and non-compliance procedure attempt to make the process more transparent by ensuring reporting and monitoring. To sum up, the Montreal Protocol has “done a significant amount of good for society, and the problems that we face today with the Protocol are not as bad as the harm that we would have faced had the Protocol not been entered into” (Mossos 8). While – like any international treaty – the Montreal Protocol is not perfect, it has been largely effective. The ozone hole has lessened, not widened. We can only hope that its success could inspire more effective treaties relating to other environmental catastrophes, such as biodiversity loss or the climate change.

Bibliography

Chasek et al, Pamela S. Global Environmental Politics. Fifth Edition. Boulder: Westview Press, 2010.

Mossos, Elias. "The Montreal Protocol and the Difficulty With International Change." Albany Law Environmental Outlook Journal (2005).

Thoms, Laura. "A Comparative Analysis of International Regimes on Ozone and Climate Change with Implications for Regime Design." Columbia Journal of Transnational Law (2003).

UNEP. "The Montreal Protocol on Substances that Deplete the Ozone Layer." March 2000. United Nations Environment Programme. 6 March 2011 <http://www.unep.org/ozone/pdfs/montreal-protocol2000.pdf>.

Victor, David G. "International Environmental Agreements: Compliance and Enforcement: Enforcing International Law: Implications for an Effective Global Warming Regime." Duke Environmental Law and Policy Forum (1999).