Montreal Protocol: ATreaty Analysis

by Paige Marie Villarreal Dean

The Montreal Protocol on Substances that Deplete the Ozone Layer of 1987 addresses the accumulation of man-made chemicals called ozone-depleting substances (ODS) that deplete the ozone layer in the atmosphere, which has caused the ozone layer to thin in some places (Handbook 2020, Preamble). The Montreal Protocol was developed out of the 1985 Vienna Convention for the Protection of the Ozone Layer. As a framework convention treaty, the Vienna Convention outlines the general principles of the need for international action on ozone depletion, scientific research and data reporting processes for better understanding the effects of ODS on the atmosphere, and negotiation for a more substantive protocol began almost immediately. The Vienna Convention was replaced by the Montreal Protocol, which outlines specific obligations and mechanisms for limiting human activity causing harm to the ozone layer (“The Vienna Convention” n.d.). The Montreal Protocol and the Vienna Convention remain the main international agreements regulating and protecting the ozone layer. The Montreal Protocol has proven extremely effective at reducing ozone emissions through altering state behavior by its robust governance structure and assistance mechanisms, its managerial compliance structure, and ability to adapt to become an extremely successful hallmark treaty of international environmental law.

Ozone depletion is the result of certain chemical compounds produced by human activity that destroy ozone molecules when they come into contact with ultraviolet light in the stratosphere. Such compounds are created through industrial practices and were commonly found in “refrigerants, aerosols, fire extinguishers, air conditioning, solvents, plastics, pharmaceuticals, coolants, military equipment, electronics, car manufacturing, and agriculture” (Benedick 1991, 1). Ozone depletion has been theorized since 1974 and observed since the early 1980s and has adverse effects on the environment and human health. Estimates show that if the problem had been left unchecked, the planet would have been uninhabitable by mid-century. This environmental problem is a transboundary issue since ODS spread around the world, and countries responsible for much of their spread were not necessarily feeling their effects. The Montreal Protocol established a phase-down approach to regulate and ultimately ban the production and consumption of ODS among all parties, which has allowed the ozone layer to eventually return to pre-1980s levels once the concentrations of ODS in the stratosphere have declined. It will take several decades to fully achieve this. To accomplish this, the Montreal Protocol requires that all member states adhere to a phased-down schedule of the production and consumption of the list of controlled substances (chlorofluorocarbons (CFCs), halons, carbon tetrachloride, hydrochlorofluorocarbons (HCFCs), methyl bromide), collectively known as ozone-depleting substances (ODS) (Handbook 2020, Section 1.1, Article 2). This phase-down approach is specified for each major group of ODS outlined in Annexes A-F, freezes the production and consumption of ODS at 1986 levels, and then moves down periodically along a specific timeline until zero production and consumption is achieved. The parties are also required to ban their import and export of controlled substances with non-party states, consider the feasibility of restricting or banning other products produced with but not containing these controlled substances,agree not to provide support to any non-party

to produce these substances and establish licensing processes for the import and export of “new, used, recycled and reclaimed controlled substances” in Annexes A-E (Sec. 1.1, Art. 4). The protocol also recognizes the unique position of developing countries by using a “common but differentiated responsibility approach”, outlining that any developing country whose production of ODS is under 0.3 kg/per capita may be entitled to a 10-year delay in the control measures (Sec. 1.1, Art. 5). Furthermore, every 4 years after 1990, each party must convene a group of experts to assess each country’s control measures and report their findings to the Ozone Secretariat and all parties (Sec. 1.1, Art. 6). After becoming a party, each country has to report production and consumption data on ODS to the Secretariat within 3 months and do this every year afterward (Sec. 1.1, Art. 7). Additionally, parties must cooperate on promoting research on the best possible alternative technologies and ways to dispose of controlled substances as well as efforts to promote public awareness of ozone depletion and scientific efforts (Sec. 1.1, Art. 9). The parties are also obligated to create a Multilateral Fund to help finance the compliance of developing parties with the control measures (Sec. 1.1, Art. 10). Parties must also devote efforts to finding the best possible and environmentally safe substitutes and technologies and sharing them with developing parties (Sec. 1.1, Art. 10A). Countries must hold regular meetingsand set up an overseeing Ozone Secretariat that will perform specific supporting duties (Sec. 1.1, Arts. 11, 12).

All 198 UN member states have ratified the treaty and the Vienna Convention, making them the first treaties with universal ratification, and 130 states have ratified all the amendments up to the most recent amendment. The protocol aligns with a managerial model of compliance, meaning that it relies on targeted assistance and flexible obligations instead of strict incentives or punishments to push states to comply with their treaty commitments. This managerial model is reflected in both its substantive and procedural obligations for parties. How does the treaty try to guarantee that states will comply with their obligations? The compliance mechanism of the treaty in Article 8 was left intentionally vague and meant to be hammered out at the first meeting of the parties in Helsinki. It was eventually completed during the 10th meeting of the Parties in Cairo in 1998. It includes an Implementation Committee with balanced North-South state membership that oversees situations of non-compliance. It also established a list of the possible measures that could be taken in situations of non-compliance that include “a) Appropriate assistance, including assistance for the collection and reporting of data, technical assistance, technology transfer and financial assistance, information transfer and training; b) Issuing cautions; c) Suspension, in accordance with the applicable rules of international law concerning the suspension of the operation of a treaty, of specific rights and privileges under the Protocol, whether or not subject to time limits, including those concerned with industrial rationalization, production, consumption, trade, transfer of technology, financial mechanism and institutional arrangements” (Handbook 2020, Sec. 3.5, pursuant to Article 8, 798). These measures firmly align with the managerial model of compliance, and are designed to encourage state compliance with treaty objectives while taking into consideration state-specific circumstances. This type of compliance mechanism played a large role in enabling many states to join even if they foresaw difficulty in meeting obligations, and helped the treaty make steady progress towards complete phaseout of ozone depleting substances, even in situations of temporary setbacks or state non-compliance.

Another factor that allowed the protocol to work as well as it did was the establishment of the Multilateral Fund to assist developing countries in meeting treaty obligations. Despite the 10-year delay period outlined in Article 5, developing countries argued that further assistance was needed for them to be able to phase out CFCs (“Article 5: Special situation” n.d.). Developing countries displayed differing attitudes about the treaty obligations- some, like Mexico, moved quickly to make changes, while others viewed the obligations as inequitable to developing countries (Benedick 1991, 100). Given that developing countries, particularly China and India, had the potential to cause future damage to the ozone layer with their use of CFCs and represented 75% of the world’s population, it was critical that they be convinced to join the treaty. Because developing countries saw the ozone problem as one “not of their making” , they were worried that a rapid phaseout would put an undue strain on their growing economies (149). With replacement chemicals and products becoming more expensive, CFCs becoming too expensive to import, problems of access to alternatives, new operating costs, and no guarantees that costs would end up falling, these countries argued that they required technical and financial assistance to be able to meet the obligations of the treaty. The creation of a funding mechanism and transfer of technology was “the most difficult issue in the entire treaty revision process” (152). While there was broad agreement on the desired outcome, this was also a complex issue and set precedents for relations between developed and developing countries. The open-ended working group started working on this before the 1990 meetings in London to outline the basic concepts at hand, raised issues of which institution would oversee these donations and concerns about intellectual property rights and patents, how much money would actually be needed, and whether contributions should be obligatory or voluntary. An agreement was finally reached that funding assistance would be in the form of concessional loans and grants according to the principle of additionality, and in London Article 10 was revised, which struck a careful compromise between “obligatory” and “voluntary” contributions, with its detailed scale of contributions for industrialized nations (187). The Multilateral Fund would be managed through UNEP, the UN Development Program, the UN Industrial Development Organization, and the World Bank, and also established a North-South balanced executive committee for the fund so that each group had blocking power (Brack, 1996, 18). Article 5’s amended text states that “...implementation by those same Parties will depend upon the effective implementation of the financial co-operation as provided by Article 10 and the transfer of technology as provided by Article 10A” (Handbook 2020, Article 5, paragraph 5, 20)Developing countries had the potential to lose out as a result of this treaty- it is possible that the costs of importing alternative chemicals and reorienting to alternatives would have overshadowed the environmental benefits these countries would have gained. But as a result of the negotiations around Article 5 and Article 10 and the creation of the Multilateral Fund, industrialized nations were able to provide developing countries with enough financial and technical support that they were able to join the treaty and phase down their CFC production and consumption. The Multilateral Fund created, in essence, an “international compensatory mechanism designed to transfer resources to the ‘losers’” that allowed more states to take part in reducing the impacts of ODS, which was a major factor in the success of the treaty (Brack 1996, 87). This financial and technical assistance is a major example of a managerial model and was arguably the lynchpin in the success of the treaty. One of the treaty’s most influential mechanisms was the way in which it regulated the production, consumption, and trade of ozone depleting substances. In particular, by prohibiting trade of ODS, products containing ODS, and products made with ODS with non-party states, the treaty sought to limit the amount of ODS on the market and introduce incentives to maximize

participation in the treaty. Additionally, states are required to submit annual reports on their production and consumption data to the Secretariat (Handbook 2020, Sec. 1.1, Art. 7). This mechanism was also intended to prevent industry from moving to non-party states to continue their production and consumption of ODS and escape regulation, creating “ozone havens”, which could have severely undermined the overall reduction goals of the treaty and reduced incentives to develop alternatives (Brack 1996, 52). While the restrictions on trade proved to be highly contentious during the negotiating process, in the end they “constituted in effect the only enforcement mechanism in the Protocol” (Benedick 1991, 91). States have changed their behavior significantly since the negotiation of the Montreal Protocol on Substances that Deplete the Ozone Layer in 1987, especially developing countries and countries with strong emissions-contributing industries. Consumption and production of ozone-depleting substances, including CFCs, halons, and bromides, have fallen dramatically, with some categories already reaching complete phaseout. Countries have created domestic regulations and organizations for implementing the phaseout of controlled substances and developed countries have contributed money to help assist developing countries meet their obligations. Industries that previously relied on controlled substances have successfully shifted to alternative chemicals, after phasing out products containing ODS (consumer appliances, fire extinguishers, aerosol products, etc). Alternatives, like HCFCs, were used as a stop-gap and then also phased-out when it was discovered that they contributed to climate change.

Figure 1 shows the amount of ODS emissions in tons since 1986 to 2020 divided by substance. The sharp and mostly continuous decrease in ODS emissions for every chemical since 1990 is visible. (Ritchie and Roser 2018)

Figure 2 shows the amount of ODS emissions in tons from 1961 to 2014. The amount of emissions peaked in 1999 and has decreased sharply since. Current levels are below 1961 levels. (Ritchie and Roser 2018)

It is apparent that the dramatic drop in ODS emissions is directly influenced by the Montreal Protocol. Certain countries had begun the process of limiting their consumption and production of ODS before the protocol, like the U.S.’s Clean Air Act. Without the treaty, it is likely that some countries, like the U.S. and Nordic states, would have engaged in domestic actions to reduce their emissions, but it is unlikely that the emissions reductions and trade restrictions that proved effective at addressing the environmental problem would have been implemented to the degree that they were without the treaty. Developing countries would also have acted differently without the protocol- many would not have had the capacity or incentives to reduce emissions, and some, like China and India, were poised to become major consumers of ODS. Without their inclusion into some sort of international regulatory regime, the actions of the U.S. and other countries would not have been enough to make a significant change without the contributions and efforts of developing countries. The funding mechanism of the protocol allowed them to be included and have the capacity to change their behavior, which made global collective action on this issue possible. Thus, the global reduction and in some cases, elimination of ODS is directly attributable to the success of the Montreal Protocol.

So far, the Montreal Protocol has been amended five times since entering into force in 1989: in London in 1990, Copenhagen in 1992, Montreal in 1997, Beijing in 1999, and in Kigali in 2016. The major changes made at London were adjustments strengthening existing measures for the control of substances covered by the original Protocol, control measures for ozone-depleting substances not originally regulated, and provisions for further investigation of specific scientific, technical, and legal matters. Significant changes made during these

negotiations are the establishment of the Multilateral Fund to assist developing countries in meeting treaty obligations and accelerating the phaseout of ODS and incorporated a hydrochlorofluorocarbons (HCFC) phaseout for developed countries, further phaseouts for methyl bromide, and complete phaseouts for other ODS were planned (US EPA 2015). In Kigali in 2016, major expansions of the treaty were proposed. These changes extended controls to phase out the production and consumption of hydrofluorocarbons (HFCs) because these substances were widely adopted by industries as a way to move away from ozone-depleting substances, but they are also potent greenhouse gasses that are damaging to the earth’s climate. This amendment demonstrates the protocol’s commitment to adaptability in the face of new scientific evidence, and is a testament to its flexible governance structure as it broadens the protocol’s mandate.

Global ozone depletion has been reacting favorably since the time when the Montreal Protocol was negotiated. According to current estimates, global ozone concentrations will return to 1980 levels by midcentury (2042-2051) and the ozone hole will reduce back to pre-1980 levels by 2070 (Braesicke and Neu 2018, 263). Since ozone depleting substances degrade very slowly and, in turn, are present in the atmosphere for extended periods, it will be a long time before we can expect to see complete restoration of the ozone layer. Globally, “ozone protection efforts have [averted] an estimated net amount of more than 135 billion tonnes of carbon dioxide equivalent emissions going into the atmosphere from 1990 to 2010, rendering it one of the most effective tools to date in climate change mitigation” (Birmpili 2018). The impact of the Montreal Protocol has been about five times greater than the emissions reduction targets for the Kyoto Protocol during the period they’ve both been active. Additionally, global investment in green alternatives has increased and pushed the development of greener practices, chemicals, and technologies. The Multilateral Fund has transferred around $3.8 billion to help developing countries meet their obligations and transition to greener alternatives. Long-term estimates also show that the quantifiable benefits from the protocol are enormous, with around $460 billion in avoided damages to agriculture and livestock production, $1.8 trillion in global health benefits, and over one billion just for skin cancer (Birmpili 2018). The Montreal Protocol has caused global emissions of ozone-depleting substances to decrease by 99% since 1986. Current estimates are that 200 million skin cancer cases worldwide will have been avoided as a result of the Montreal Protocol, which has also had some benefits on greenhouse gas emissions (Ritchie and Roser 2018). The Montreal Protocol has also benefited the ecosystem by protecting land from ozone-specific harm. Further,without the treaty, the ozone hole above Antarctica is estimated to have grown 40% larger (Birmpili 2018).

Numerous factors have contributed to the effectiveness of the Montreal Protocol as an environmental treaty. First and foremost, the treaty boasts the universal membership of all 198 United Nations countries, which has led to the united momentum needed to overcome a global collective action problem of this magnitude. This collective action problem also had a long-time horizon, which the treaty dealt with by having the patience and commitment to set realistic and tangible stepwise goals both for the treaty obligations and negotiations process. The protocol’s robust yet flexible governance structure has allowed for this ongoing commitment since its inception and into the future. The protocol’s dedication to the managerial model of compliance was a major factor in its

effectiveness. As discussed before, the compliance and funding mechanisms made it possible for all states to join and commit to reducing their ODS emissions. In particular, the treaty would not have been as successful without the Multilateral Fund. It would not have been possible to achieve the same successes or even make much headway without the addition of developing countries, who were only able to join because of the creation of the funding and technical assistance mechanisms. In this sense, the protocol introduced a major innovation in international law that has impacted subsequent treaty efforts by making it possible for countries to meet reduction timelines. Another contributing factor was the critical role science played in negotiations and in realizing the scale of the problem as well as subsequent mitigation efforts. . The negotiations adhered to the principle of precaution, meaning that while science has not 100% verified and measured the causes and impacts of ODS on the stratosphere, the scope of the problem and risk at hand was deemed too important to wait to take action until then. At the beginning of international action on the problem of ozone depletion, the predictions and nascent observations emerging from the scientific community drove efforts to create the Vienna Convention. As the science on ozone solidified, it enabled more international consensus and momentum on building regulation around this issue that ultimately culminated in the Montreal Protocol. As a framework convention protocol model treaty, the design of the treaty allows for new scientific discoveries to influence the various amendments and reduction timelines accordingly, which has strengthened the treaty and its ability to tackle the environmental problem more effectively. This provides a good example of what a convention framework protocol model can do even in the face of scientific uncertainty, which makes the protocol that much more remarkable among the other environmental treaties in international law.

Figure 3 shows the concentration of ozone in the stratosphere — the levels fell to the 100 DU “ozone hole” level and below in the 1990s but appear to be slowly recovering in the years since 2000. (Ritchie and Roser 2018)

Figure 4 shows the projected amounts of ODS in the stratosphere from 1960 through the end of the century under different conditions: without the Montreal Protocol, with the protocol, and with all of the associated amendments to the protocol (Ritchie and Roser 2018). The difference between the latest version of the protocol and no protocol is staggering.

The inclusion and engagement of all stakeholders— governments and industry— to find actionable alternatives and solutions was critical. Since CFCs were considered a very stable, safe chemical, there was initially a lot of industry pushback against the possible regulation of their use, especially since they were so widely used. Substitutes for CFCs and other ODS weren’t easy and available at the beginning of international action on this problem. The alternatives back then were toxic or flammable, so finding safe alternatives in the event of regulation was a major concern for industry leaders. Several companies, including DuPont, were researching alternatives like hydrofluorocarbons, but this research and development really took off later as a result of the treaty. Initially, both American and European industry leaders were resolutely against any form of regulation and vigorously denied that the ozone problem and CFCs were linked (Benedick 1991, 12). Eventually, American industry was more concerned with potential costs to their reputation if the ozone problem became serious, desired uniform federal regulations, and already had developed a number of CFC alternatives (31). After 1986, American industry became committed to promote scientific research on the topic and came around to support international regulation, even intervening in favor to the treaty a few times, mostly in an effort to have a “level playing field” with the European competitors, since European industries had faced lower levels of regulation than their American counterparts. Later on, informed consumers created pressure to decrease the market for CFCs and the treaty created conditions for clearly defined phase-out schedules which helped industry reorient away from CFCs (202). Specifically, the United States was a big driver of international efforts to regulate ODS emissions. The U.S. had already established domestic regulation on this issue with the Clean Air

Act of 1963. This domestic action undertaken by the largest emitter of ODS signaled to the international community that ODS regulation and solving the ozone hole problem was now possible and drove momentum for international action and made the U.S. a major leader of the subsequent treaty negotiations. This domestic regulation also impacted the U.S. industry, who now were in favor of international regulation so their foreign competitors were subject to similar regulations to lessen any possible competition. The possibility for universal state participation in the treaty was a large facet of the industry’s eventual support because it meant that all states would eventually have to use alternatives, creating a major market waiting to be developed. Specifically, the United States was a big driver of international efforts to regulate ODS emissions. The US had already established domestic regulation on this issue with the Clean Air Act of 1963. This domestic action undertaken by the largest emitter of ODS signaled to the international community that ODS regulation and solving the ozone hole problem was now possible and drove momentum for international action and made the US a major leader of the subsequent treaty negotiations. This domestic regulation also impacted the US industry, who now were in favor of international regulation so their foreign competitors were subject to similar regulations to lessen any possible competition. The possibility for universal state participation in the treaty was a large facet of the industry’s eventual support because it meant that all states would eventually have to use alternatives, creating a major market waiting to be developed. The Montreal Protocol in its 33 years of existence has successfully conquered the potentially devastating environmental problem of ozone depletion, increased global cooperation, and contributed significantly to the innovation of international environmental law. It is undoubtedly effective because of the role of science in the negotiations, the financial and technical assistance as well as differentiated responsibilities that allowed developing countries to join in the treaty efforts, the role of the US and industry, and its flexible yet robust design. The global community is lucky that the efforts of the scientists, lawyers, policymakers, diplomats, and industry leaders culminated in a strong, impactful treaty that has drastically improved the environment.

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