The experience of the Montreal Protocol: particularly remarkable, and remarkably particular.

• Author: DeSombre, Elizabeth R.
• Position: Ozone depletion treaty

I.

INTRODUCTION

By most accounts, the treaty process for addressing ozone depletion is an unqualified success. It has achieved near universal participation, with 170 states party to the Montreal Protocol, and a substantial fraction of those party to the London, Copenhagen, and Montreal Amendments to the Protocol.(1) It has fundamentally changed the way certain industries conduct their business, already creating in some countries a complete phaseout of certain classes of chemicals.

The process itself is particularly impressive. Negotiations began under conditions of uncertainty, over both the existence and extent of environmental harm and the costliness of taking action to mitigate it. The Vienna Convention, the Montreal Protocol, and subsequent amendments have created the ability to adapt to changes in scientific understanding of the problem and its potential solutions. The environment is responding as well. Although it is too soon to expect to see improvement in the ozone layer, measurements indicate that it is deteriorating at a decreasing rate, and concentrations of some ozone depleting substances in the atmosphere are starting to decline.(2)

Moreover, the process operated under circumstances that made its success seem unlikely. The Montreal Protocol was the first global environmental treaty to address an environmental problem that was still only theoretical. The idea that halogenated compounds could destroy ozone had been demonstrated in the laboratory, and Sherwood Roland and Mario Molina had theorized that human-created chlorofluorocarbons (CFCs) could migrate into the stratosphere where the ozone layer protected the earth from harmful ultraviolet rays. But no one had seen the destruction of the ozone layer by these chemicals and, more importantly, no one had witnessed actual environmental damage resulting from this potential problem. This process addressed a truly precautionary issue in a way that had not previously been attempted on such a large scale.

In addition, there was uncertainty about the effects of regulation. Although industries in the United States had undertaken some research on substitute chemicals, no substitution was readily apparent and any were likely to be expensive. Industries were reluctant to agree to restrict the use of an important class of chemicals, and states were reluctant to make them bear such uncertain costs.

The ways in which this set of agreements has accomplished its goals are important to examine. The primary one involves the way the possibility for adjustments, of a variety of types, is integrated into the treaty process. The use of a Convention/Protocol structure allowed for official negotiations to begin when there was little consensus over science or the need to act, and create or deepen commitments once information became accepted. In a more radical move, the Protocol process allowed for non-negotiated adjustments to take place that would bind all signatories, thereby skirting some of the major difficulties in changing treaty obligations. Much work is done behind the scenes by Secretariat members or other committees that result in implicit adjustments as well as processes, in ways that smooth over potential problems before they become serious. In short, the treaty process is not rigid, but is constantly adjusting new situations.

Although criticized by many for bowing to industry influence, the process has taken care to work within or create incentive structures that encourage industry action to protect the ozone layer. As a result, the change to substitute chemicals or manufacturing processes cost far less than many predicted, and caused less of a disruption in industrial activity than it could have.

Finally, the Montreal Protocol process broke new ground in addressing issues relating to developing countries. States that had not been the primary creators of the environmental problem and for whom global atmospheric protection ranked fairly low on any list of concerns, were given special consideration in order to bring them into a system of regulations in which they would eventually need to participate. Article 5 of the Montreal Protocol addresses measures to help developing states with an annual consumption of ozone depleting substances (ODS) less than .3 kg per capita. In particular, a well-specified financial transfer mechanism has provided the funding and technical assistance to Article 5 countries to reduce or eliminate the use of ozone depleting substances. Many efforts at addressing global environmental issues following the Montreal Protocol have adopted this approach.

The process of responding to ozone depletion has not been entirely simple. It has faced a number of unforeseen problems, some of them more serious than they appear; some less so. As a representative of the environmental group Friends of the Earth pointed out, "None of our models predicting when CFC releases will peak and when the ozone hole will close up take into account smuggling and large countries that don't comply."(3) These difficulties, primarily relating to the thriving black market in ozone depleting substances and the uncertainty over developing country phaseout of these substances, are both in some ways side effects of precisely the things that made the Montreal Protocol successful. The black market arises in part out of the non-treaty ways states have chosen to implement the agreement.(4) While not part of the agreement, these mechanisms of implementation were important in setting up the industrial incentives to create and use non-ozone depleting substances. It is thus a side effect, and probably not a fatal one. The possibility that large developing countries may ultimately refuse to phase out their use of ozone depleting substances is an open question at this point but a greater potential danger. It is a more direct effect of the way the treaty enticed developing countries to join, and it too may not have had any reasonable alternatives. These potential difficulties should not, for now, overshadow the dramatic improvements the treaty has initiated.

Ozone depletion thus presented a number of regulatory challenges that the international system surmounted in creative ways. But compared to many global environmental agreements, ozone depletion had some characteristics that made it potentially easy to address. The scientific uncertainty was easier to resolve here than is likely to be the case in comparable issues. The industrial incentives in the states most responsible for ozone depletion could be made to line up relatively simply with an ultimate phaseout of the chemicals they depended on. Although widespread and important, the types of chemicals in question were also specific, human-created, and their uses more circumscribed than we are likely to find in newly-appearing environmental issues. In short, although the process of mitigating ozone depletion had difficult pioneering challenges, it has also benefited from a number of fortuitous factors. To that extent, it has been a remarkable treaty process, but a particular one as well.

II.

ADJUSTING OBLIGATIONS

One of the notable features of the Montreal Protocol process is the extent to which it is designed to allow for adjustments when scientific understanding or political willingness to address the issue changes. This flexibility was particularly important for a treaty that was negotiated when there was no clear evidence of human-induced destruction of the ozone layer and certainly no measurable effect or environmental damage as a result of such depletion. The major factors allowing for change in regulations include the type of treaty used to regulate, an additional adjustments process included in the treaty, and the existence and autonomy of bodies within the treaty organization that have the ability to study or suggest changes in various policies.

1. Convention-Protocol Structure

   The use of a Convention/Protocol treaty structure allowed negotiation to begin when there was uncertainty about the extent of the environmental problem, and a disinclination to take action under those conditions. While this regulatory format did not begin with the Vienna Convention and the Montreal Protocol, the experience with the ozone depletion issue popularized this approach, which is now seen as commonplace in international environmental regulation.(5)

   The Vienna Convention for the Protection of the Ozone Layer creates a framework in which states agree to take "appropriate" (but unspecified) measures to protect the ozone layer, cooperate in scientific research, and exchange information.(6) It indicates that the Conference of the Parties to the treaty "may adopt protocols" in order to create substantive obligations.(7) The 1985 Convention was followed by the negotiation in 1987 of the Montreal Protocol on Substances that Deplete the Ozone Layer, which required specific abatement measures for ozone depleting substances. As laid out in the Vienna Convention, amendments to the Protocol can be made with a 2/3 majority vote and are then subject to ratification by the Parties.(8) Only those that ratify the Amendments are bound by them, although states that ratify the Protocol are bound by any Amendments in force at the time of ratification. Amendments were agreed to in London in 1990, Copenhagen in 1992, and Montreal in 1997.

   The Convention/Protocol process resulted in a more robust agreement, at an earlier point, than would have occurred if negotiations had only begun once serious abatement measures could have been agreed upon. The Montreal Protocol added specific abatement measures and the amendments added new regulated substances and new regulatory processes. The London amendments added regulations for carbon tetrachloride, methyl chloroform, and fully halogenated CFCs, as well as introducing the funding mechanism to provide assistance to developing countries.(9) The Copenhagen Amendments added HCFCs, hydrobromide fluorocarbons, and methyl...