Lessons from the Montreal Protocol: guidance for the next international climate change agreement.

• Author: Green, Bryan A.

1. INTRODUCTION II. OZONE DEPLETION A. Background B. The Vienna Convention C. The Montreal Protocol III. CLIMATE CHANGE A. Background B. The Kyoto Protocol IV. RECOMMENDATIONS FOR IMPROVING THE INTERNATIONAL APPROACH TO CLIMATE CHANGE A. State Sovereignty B. Common but Differentiated Responsibilities V. CONCLUSION I. INTRODUCTION

   Lessons from the Montreal Protocol on Substances that Deplete the Ozone Layer's (Montreal Protocol) (1) approach to ozone depletion and its incorporation and utilization of important international environmental law principles can serve as a model to alter and further develop the next international agreement to better and more effectively address climate change. The current global response, the Kyoto Protocol to the United Nations Framework Convention on Climate Change (Kyoto Protocol), (2) has woefully fallen short of the same success the Montreal Protocol enjoyed. Though the issues of climate change and ozone depletion have significant differences, they are intertwined both by similarities and overlapping interests directly affecting the efficiency of the other. (3) Ozone depletion and climate change are important issues due to the nature of the threats each poses to the world and the vast array of possible consequences that could result from their effects. Both have generated controversy, both are environmental concerns, and both present threats and consequences of a global nature requiring global action in response. (4)

   This Comment examines these two environmental challenges and the approaches taken by the international community--through the Montreal Protocol and the Kyoto Protocol--to confront them. The principles highlighted in this Comment are increasingly important as the issue of climate change itself continues to be at the forefront of public debate. The two protocols represent the principal global steps taken to address ozone depletion and climate change respectively. (5) Thus, many of the successes of one can provide an effective parallel way to approach and improve the other. The Montreal Protocol met heralded success and overcame all the odds, while the Kyoto Protocol has never overcome criticism and controversy. (6) The Montreal Protocol succeeded and overcame obstacles where the Kyoto Protocol failed and the obstacles proved insurmountable. (7) The protocols have had such different results for a variety of reasons. Factors ranging from magnitude of the potential threats to faulty interpretation of principles and precedents all contributed to the effectiveness of the strategic responses chosen by the international community. (8) In order to improve the next generation of response regimes, these factors need to be understood.

   Part II discusses ozone depletion while focusing on the development of both the realization and awareness of the problem as well as the solution. It explains the role environmental principles, such as the precautionary principle and the principle of common concern, played in the evolution of the world's response to ozone depletion. (9) Finally, Part II also examines the Montreal Protocol for its strengths and successful mechanisms that could be applicable to climate change as well.

   Part III examines the issue of climate change and the approach that the international community has taken to address it. It specifically points to the ways climate change and the Kyoto Protocol differ from ozone depletion and the Montreal Protocol. Last, an assessment and analysis of the Kyoto Protocol's disappointing efficacy sets the stage for Part IV which contains recommendations for improving the overall effectiveness of both treaties. Part IV provides an analysis of the key differences which are limiting the success of the international approach to climate change versus ozone depletion. It also includes recommendations for learning from the Montreal Protocol to improve the Kyoto Protocol's effectiveness, particularly focusing on the roles of state sovereignty and the principle of common but differentiated responsibilities. Part of improving the preservation of state sovereignty involves an examination of how properly linking the two protocols would strengthen the international community's approach to climate change. Due to the similarities and overlap between the issues of climate change and ozone depletion, potential for improvement on the Kyoto Protocol's mechanisms exists if proper cooperation with the Montreal Protocol is utilized. Such cooperation can begin with similar interpretation and applications of environmental principles. For example, much of the analysis of the principle of common but differentiated responsibilities focuses on the flawed interpretation of the principle by the Kyoto Protocol. In the end, this room for substantial improvement should drive the international community towards effective cooperation.

2. OZONE DEPLETION

   1. Background

      The Montreal Protocol is considered a landmark international environmental agreement for its relatively effective and successful approach to solving the problem of stratospheric ozone depletion. (10) In fact, in 2003, then United Nations Secretary General Kofi Annan called it "perhaps the single most successful international agreement to date." (11) The issue of ozone depletion first was theorized and became a consideration in 1974 when two University of California, Irvine scientists, Mario Molina and F. Sherwood Rowland, expanded on the theory that chlorine in the stratosphere could initiate a chain reaction that would damage the ozone layer for an extended period of time. (12) They discovered that human-made chlorofluorocarbons (CFCs) and halons do not break down chemically in the lower atmosphere, but instead rise to the stratosphere. (13) Molina and Rowland hypothesized that once in the upper atmosphere, the CFCs remain there for an extended period of time until they are eventually broken down by radiation from the sun. This process releases large quantities of chlorine atoms into the atmosphere, which depletes the stratospheric ozone layer. (14) Critical to life, the ozone layer shields all living organisms from hazardous ultraviolet (UV) rays, "which damage cells and cause mutations, including skin cancer in humans." (15)

      Molina and Rowland's report sparked a new debate in the scientific community, because if their theory was correct, then the depletion of the ozone layer would expose the planet to dangerously enhanced levels of UV radiation. (16) Such dangers implicated the emission of CFCs as a possibly significant health risk. (17) Scientists warned the public about the many serious dangers of exposure to UV radiation, including: millions of future deaths from skin cancer, millions of cases of eye problems such as cataract and blindness, human immune system deficiencies, losses in food production and fisheries, damages to common materials such as plastic, and an increase in the greenhouse effect. (18) Such serious warnings caught the attention of the general public, especially in the United States, and public awareness increased substantially due to the severe and unacceptable nature of the hazards. Ozone depletion became the first truly global environmental danger facing the world, and it proceeded to be "theorized, derided, [and] hotly debated." (19)

   2. The Vienna Convention

      In 1982, the United Nations Environment Program (UNEP) initiated intergovernmental negotiations for an international agreement to protect the ozone layer. (20) Ultimately the negotiations resulted in the Vienna Convention for the Protection of the Ozone Layer (Vienna Convention) three years later. (21) This convention, signed by twenty states and the European Community in 1985, laid the legal framework for the international community to take steps to deal with the problem of ozone depletion. (22) The argument for ozone protection marked the first time the international community had taken formal steps to address an environmental threat before scientific certainty was established regarding the cause. (23) It was a major advance in the development of both the principle of common concern and the precautionary principle. Later, both of these principles would play a key role in the drafting of the Montreal Protocol.

      While the parties acknowledged the potentially harmful impact on human health posed by ozone depletion, the Vienna Convention focused not on action, but on further research, collection, and exchange of scientific data. (24) It provided the framework for which future protocols would be negotiated and amended. (25) As a means to avoid disagreement amidst so much uncertainty, the Vienna Convention did not specify any substances estimated to be contributing to ozone depletion, and instead required party-states to "take appropriate measures" to protect against the "adverse effects resulting or likely to result" from damage to the ozone layer. (26) Thus began the powerful cooperative nature that was omnipresent throughout the ozone negotiation process and which became the backbone of the Montreal Protocol.

      The Vienna Convention and attention to ozone depletion was strengthened later in 1985 when a new study by British scientists theorized that an ozone hole, a "portion of the stratosphere in which greatly diminished ozone levels were measured," had developed over the Antarctic region. (27) While the evidence was not yet conclusive, the theory of a hole in the ozone layer further increased public awareness of the potential dangers of ozone depletion and heightened the world community's overall sense of urgency. (28) This helped give the parties to the Vienna Convention renewed momentum when they met again in Montreal in 1987 to develop a protocol for reversing ozone depletion, as specified in the Vienna Convention. (29)

   3. The Montreal Protocol

      While the issue of protecting against ozone depletion was legitimized by the Vienna Convention, its strength came from the subsequent Montreal Protocol, which consisted of a...