The Ozone Regime - Vienna + Montreal

Question 1

Key Implications + Problems of Depletion of Ozone Layer

Answer 1

• human health concerns - skin cancer, eye cataracts
• possibility that UV rays can harm plants -> hinders their ability to process carbon
  -> implications for climate change - loss of carbon dioxide sinks
• impacts on sensitive animal species (frogs in particular) -> harmful to biodiversity
• phytoplankton - reduction -> subsequent harms to ocean ecosystems + implications for human populations that rely on them

Question 2

Ozone Regime - Timeline of Agreements and Progress

Answer 2

• 1985 Vienna Convention
• 1987 Montreal Protocol to the Vienna Convention - control of CFCs
• 1990 London Amendments + Adjustments - phaseout of CFCs + adding HCFCs
• 1992 Copenhagen Amendments + Adjustments - Compliance Mechanism
• 1994 Vienna Adjustments
• 1997 Montreal Amendments and Adjustments
• 1999 Beijing Amendments and Adjustments
• 2016 Kigali Amendment to the Montreal Protocol - HFCs

Question 3

Context of Vienna Convention

Answer 3

• parties didn’t have a lot of scientific certainty on destruction of ozone layer at the time (some analysis, but biggest piece came after + science was contested)
• BUT consumers were invested -> started boycotting ODSs
• industry - those subject to domestic regs already (including US) wanted int regs to level the playing field
  -> added concern that developing alternatives would take investment - want to know that the investment would be worth it (DuPont pushed for US involvement in negotiations)
• Europe - wanted limits but not a complete phaseout (split - some countries had already regulated domestically, vs. others benefitting competitively from relative lack of regs)
• problem was concentrated among a few countries + a few industry players -> easier to get things done once key players come to the table (vs. climate change less manageable)

Question 4

Vienna Convention - Participation

Answer 4

• only 43 countries, 16 of which were developing countries
• 3 industry groups (more generally, industry groups were influencing positions of the countries at the time)
• no env groups (hadn’t really mobilized around this event)

Question 5

Vienna Convention Article 2(1)

Answer 5

• discusses the obligation to the extent there is/isn’t one
  -> “shall take” + general statement of protection
  -> BUT “appropriate measures”
• binding in the sense that this is a treaty, but the actual obligation is somewhat vague

“The Parties shall take appropriate measures in accordance with the provisions of this Convention and of those protocols in force to which they are party to protect human health and the environment against adverse effects resulting or likely to result from human activities which modify or are likely to modify the ozone layer.”

Question 6

Vienna Convention Article 2(2) - Top

Answer 6

“To this end, the Parties shall, in accordance with the means at their disposal and their capabilities…”

• preamble to setting out particular obligations
• concept of common but differentiated responsibility
• weak in comparison to the binding, immediate reductions the US wanted, but still requiring something of the parties
• designed to get everyone on board despite doubts (trying to bring people to the table in hopes that specifics will follow)

Question 7

Vienna Convention - Article 2(2)(a)

Answer 7

• commitment to cooperate on research
• critical piece of coming together on an issue of scientific uncertainty -> putting in place the conditions to develop greater understanding

“Co-operate by means of systematic observations, research and information exchange in order to better understand and assess the effects of human activities on the ozone layer and the effects on human health and the environment from modification of the ozone layer;”

Question 8

Vienna Convention - Article 2(2)(b)

Answer 8

• “appropriate legislative or administrative measures”, “appropriate policies”, “should it be found” likely adverse effects -> not asking countries to act if they don’t yet have the info
• targeted at domestic level of governance – exhortation to pay attention domestically (not just saying int community will set up something then walk away, establishing connection between int level agreement + domestic implementation)

“(b) Adopt appropriate legislative or administrative measures and co-operate in harmonizing appropriate policies to control, limit, reduce or prevent human activities under their jurisdiction or control should it be found that these activities have or are likely to have adverse effects resulting from modification or likely modification of the ozone layer;”

Question 9

Vienna Convention - Article 2(2)(c)

Answer 9

• cooperate on forming protocols + annexes
• more directed at int level

“Co-operate in the formulation of agreed measures, procedures and standards for the implementation of this Convention, with a view to the adoption of protocols and annexes.”

Question 10

Vienna Convention - General Themes of Articles 1 and 2

Answer 10

• precautionary element of “likely” language regarding harm
• setting up desire for study
• putting in place mechanisms for proceeding – setting up check-in points, but allowing for regulation before we know for sure there will be harm
• some parties willing to push for something more, but some scientific uncertainty + no consensus across the board
• also corresponds to Article 3 - “Research and Systematic Observations”

Question 11

Vienna Convention - Article 4

Answer 11

• Co-operation in the Legal, Scientific and Technical Fields
• gets a bit stricter according to Prof - “Parties shall facilitate and encourage the exchange of scientific, technical, socio-economic, commercial and legal information”
  -> Prof emphasized this article isn’t walked back like the others – you do need to cooperate (basically seems to be that when it came to domestic leg, they didn’t require it, but even if you’re not gonna make firm commitments you do need to at the very least cooperate internationally)

Question 12

Vienna Convention - Article 8

Answer 12

• deals w/ adoption of protocols (ex: the Montreal Protocol)

Question 13

Vienna Convention - Article 9

Answer 13

• deals w/ amendments to the convention itself or its existing protocols
• can be proposed by any party
• “shall take due account, inter alia, of relevant scientific and technical considerations”
• must be adopted at COP, w/ text communicated in advance
• consensus = goal, but if that fails, need 3/4 majority vote for amendments to the framework convention and 2/3 majority vote for amendments to a protocol

Question 14

Framework vs. Protocols

Answer 14

• framework convention = core - sets up initial foundational obligation, w/ protocols to follow
• protocols intended to be implementation of broad goal (place where parties need to do the hard work, plays out in adjustments + amendments to protocols)
• protocol is ultimately a new treaty though - framework says go forth and create protocols, but you still need to negotiate them + get parties to sign on (wind up w/ countries who may commit to framework but not particular protocols)

Question 15

Vienna Convention - Article 10

Answer 15

• adoption + amendment of annexes
• need 3/4 majority to adopt annexes to the framework convention + 2/3 for annexes to protocols
• annexes have an opt-out provision (nod to fact parties might not want to be bound to convention if it’ll contain annexes they don’t know about yet)
• annexes supposed to add more clarity + detail - Article 10(1) restricts to “scientific, technical and administrative matters” (fair to say more about the nitty gritty, although could have significant influence on core commitments)

Question 16

What did the Vienna Convention accomplish?

Answer 16

• agreed there was something for int community to address + start thinking about how they might do so/generate info
• strategic rationale of starting at very broad, non-concrete stage (laying foundation, getting people to at least agree there’s a problem)
• q of what impression it sends to developing countries (possibly that entering into CFC industry would be a risky endeavor - Vienna written w/ assumption of further activity)
• DuPont - concept that coming out of this, the company doesn’t really have as much clarity/certainty in the marketplace as it might’ve wanted

Question 17

Should we always start with a framework convention, or are there instances in which we should push for more at the outset?

Answer 17

• urgency of the problem
• historic moment - in comparison to Vienna, we now have other tools to draw from + might expect more (still a foundational doc, but might expect more now)
• q of how this plays out in public eye - essentially int community endorsing scientists’ concerns -> could feed back into civil society responses
• difficulty of separating it from the success of Montreal

Question 18

Lead-up to Montreal

Answer 18

• 1985 - 2 months after Vienna ended, British scientists announced ozone hole in Arctic (didn’t address role of CFCs in creating it, but still drew public attention)
• 1986 - study from US, Germany, UNEP + WMO published on impact of human activities on ozone layer -> still some uncertainty + study technically qualified its predictions, but public alarmed by estimated health effects
• US position developed into near-term freeze on CFC consumption -> conducted lots of overseas lobbying
• on industry side, DuPont announced it could develop CFC substitutes w/in 5 yrs provided that regulatory reqs justified heavy investment in research + development

Question 19

Montreal - Participation

Answer 19

• over 60 countries (more than half from developing countries)
• many industrial + env groups
• wide media coverage

Question 20

Montreal - Article 2 - General

Answer 20

• control measures
• established schedule of phaseouts for ozone-depleting substances
  -> each party initially agreed to cap consumption + production of CFCs at 1986 levels, w/ limited 10% increases allowed only to “satisfy basic domestic needs” of developing countries
  -> basic cap approach has remained in place as the regime has expanded its coverage of ODSs + agreed to stricter phaseout schedules

Question 21

Montreal - Article 2(5) and 2(8)

Answer 21

2(5) - ability to transfer substances to other parties (you can transfer part of your allowed production to someone else, + this is fine as long as your combined production levels are under the appropriate cap)

2(8) - explicitly mentions a regional economic org being allowed to agree to jointly fulfill obligations related to consumption

• helps a regional economic org like the European Community

Question 22

Montreal - Article 2(9)

Answer 22

a) Parties may decide three things (pursuant to assessments made in Article 6)

i) if they should adjust ozone-depleting potentials specified in various annexes
ii) if they should adjust the global warming potentials of substances in the annexes
iii) if further adjustments and reductions of production or consumption should be undertaken, + scope, amount+ timing if so

c) voting procedure for making these decisions - consensus ideal, but if not possible, 2/3 majority of parties present + voting representing majority of both parties that are operating under Article 5 + those that aren’t (basically, developing countries and developed countries - need to have a majority of each among those present + voting)

Question 23

Article 2(10)

Answer 23

• similar to 2(9), based on assessments made under Article 6
• BUT now deciding whether to add or remove substances from the annexes + mechanism, scope, + timing of controls that should apply to such substances
• voting - procedure pursuant to Article 9 of the Convention (i.e. Vienna Convention -> 2/3 majority as an amendment to the protocol)

Question 24

Montreal Protocol - Article 3

Answer 24

• Calculation of control levels
• 3(a) - calculate production levels by multiplying annual production of each controlled substance by its ozone-depleting potential (listed in annex) + adding together resulting figures for each group of substances
• 3(b) - imports + exports calculated using same procedure as 3(a)
• 3(c) - consumption = production plus imports minus exports (all drawing from 3(a) and 3(b)) EXCEPT exports don’t get subtracted beyond Jan 1993

Question 25

Montreal - Article 3 - Benefits of Grouping Substances

Answer 25

• concept that substances are grouped together (production + consumption calculated for each group, not each chemical)
• allows you to maneuver within each category - leaves states room to find out what methods will allow them to reach their limits
  -> don’t need to negotiate with each other chemical by chemical - focusing on the broader harm + w/in a category each state can prioritize where it might have greater or lesser needs

Question 26

Montreal - Article 4

Answer 26

• has rules regarding trade with non-parties
• bans imports + exports of controlled substances in trade w/ states not party to the protocol
• also bans imports containing controlled substances from non-parties, + option of doing so wrt products produced using the controlled substances
• also discouraging export of tech to non-parties for production/use of the controlled substances + can’t provide subsidies, aid, etc. for products, equipment, plants or tech that would facilitate production of the controlled substances to non-Parties

Question 27

Montreal - Article 4 - General Purpose

Answer 27

• prevents free-riding
• states w/ emerging industries might’ve been contemplating taking over market, vs Article 4 removing incentive to fill gap created by parties limiting their production (incentivizes joining the treaty)

Question 28

MP Article 4 and Trade Issues

Answer 28

• Prof emphasized question hasn’t really come up bc it’s a multilateral treaty - not much incentive for parties to question this
• GATT Article 20 would likely allow under necessary for human health

Question 29

MP Article 5

Answer 29

• developing countries
• entitled to delay of 10 yrs for certain compliance measures
  -> delay only if your consumption is below a certain threshold + only if the delay is in order to meet your domestic needs (not designed to allow you to develop a new exporting industry)
• also allows them to notify secretariat if unable to obtain adequate supply of controlled substances
• implication that fulfillment of obligations is connected to financial support

Question 30

Q of Whether Article 5 Strikes the Right Balance

Answer 30

• encourages parties to join the agreements, with clear signal of longer timeframing
• allowed growth potentially counterproductive, BUT kept below a certain threshold (still lower than US + EC)
• bright line rule - easier to impose + assess, but q of whether 10 yrs long enough + might be bad for instances where you need flexibility
  -> wound up working fine in this regime b/c so few countries were in the market to begin with, vs. something like climate change might want more fine-tuning b/c everyone contributing at some level
  -> in this instance, helped prevent new producers from developing
• at time of MP though, only vague promises re tech
  + financial assistance (1990 London Ams created Multilateral Fund)

Question 31

MP Article 8

Answer 31

• non-compliance
  -> DOESN’T outline mechanism though - just saying something is coming, parties will figure it out later
• “The Parties, at their first meeting, shall consider and approve procedures and institutional mechanisms for determining non-compliance with the provisions of this Protocol and for treatment of Parties found to be in non-compliance.”

Question 32

MP Article 18

Answer 32

• “No Reservations may be made to this Protocol”
• rationale - don’t want parties getting the benefits of the treaty but making reservations for particular chemicals where they’re consuming at especially high levels
• goal of globally reducing all the substances included in the treaty (treaty as a whole)
  -> lack of reservations consistent with goals and mechanisms of the treaty, plus market forces that come into play

Question 33

MP Article 19

Answer 33

• deals with withdrawal
• need to be party to the treaty for 4 yrs before you can withdraw, + withdrawal takes effect 1 yr after you notify “the Depositary”
• main rationale may be the hope that by the time 4 yrs hits, you’ve spent resources on alternatives + path dependence more likely to kick in

Question 34

Montreal Protocol - Chemical Basket Strategy

Answer 34

• Montreal Protocol established reduction schedule for CFCs - consumption to be reduce by 50% by 1998
• chemical basket strategy involved unique schedules for each “basket” of chemicals but w/ flexibility on reduction strategies
  -> ozone-depleting potentials factored in, so higher ODP would mean reduced more compared to same amount of a substance w/ lower ODP
  -> allowed for greater flexibility + reduced overall costs of phasing out CFCs + ODSs
  -> avoided chemical-by-chemical negotiations + provided clear signals for industrial development

Mechanism of calculation set out in Article 3

Question 35

MP - Ratification

Answer 35

• q of when the controls would enter into force – countries bound by trade + reduction provisions as soon as ratified -> weird incentive to hold out + gain short-term benefits before ratifying -> Protocol tried to avoid this by only entering into force when at least 11 countries representing two-thirds of global CFC production had ratified

Question 36

MP - Broad Design Re Assessments + Amendments

Answer 36

• designed to evolve over time
• parties required to assess + review controls every four yrs -> ensured that the Protocol’s controls would reflect understanding of mechanisms + causes of ozone depletion as well as economic + technical feasibility of alternatives
• if harsher than necessary, reduction schedules could be modified by two-thirds majority of countries representing two-thirds of global consumption, vs. adding new controls only required 2/3 majority of countries representing half global consumption
• parties have continued to meet since 1987 - tighten reduction schedules, bring new substances under control, + est rules + op procedures to implement comprehensive regime for managing many chemicals

Question 37

MP Article 6

Answer 37

• assessment and review of control measures
• provided that parties would assess control measures at least every 4 yrs
• “on the basis of available scientific, environmental, technical, and economic information”
• also says at least 1 yr before each assessment, “Parties shall convene appropriate panels of experts qualified in the fields mentioned”
• “panels will report their conclusions, through the Secretariat, to the Parties”