New Zealand Journal of Environmental Law
Last Updated: 14 February 2023
A Story between Success and Challenge — 20th Anniversary of the Montreal Protocol
Anne Lucia Plein*
When the Montreal Protocol on Substances that deplete the Ozone Layer was signed by twenty-four countries and the European Community in September of 1987, it was hailed as a milestone in international environmental diplomacy. And indeed, the Montreal Protocol, now ratified by more then 190 nations, still represents a major political and diplomatic achievement in the international effort to protect stratospheric ozone. Designed to control the production and consumption of ozone-depleting chemicals, the Protocol provides for a gradual phase-out of chlorofluorocarbons before irreversible damage is done to the Earth’s ozone layer. Therefore, the Montreal Protocol, the foundation for this process, stands as an extraordinary and even spectacular success story. Unfortunately, there is still no room for complacency and the Montreal Protocol’s work to protect the ozone layer is far from done. In 2006 scientists recorded nearly the largest ozone hole ever over Antarctica, and new data indicates that the recovery of the ozone layer above Antarctica will be delayed by fifteen years, with a return to pre-1980 levels not occurring until 2065. Ozone layer recovery at mid-latitudes is also delayed and will not return to
*Anne Plein commenced her education in Germany and in 1999 began law studies at the Johannes-Gutenberg University in Mainz. The programme included graduate studies in German and international law. From 2001 to 2002 she studied French law at the University Paris XII- Val de Marne, graduating with the degree “Licence en Droit”. In 2003 she completed a short internship at the law firm Coudert Brothers LLP, Bangkok, Thailand. In 2004 she finished the degree “Master of German and International Law” (Magister Iuris) by thesis, and in August 2006 she graduated from the Johannes-Gutenberg University in Mainz with the degree “1.Staatsexamen”. In 2007, Anne Plein studied at the University of Auckland, New Zealand, for a Master of Laws, LLM. This article comprises a paper written for the International Environmental Law course conducted by Professor Jutta Brunnée (from the University of Toronto). Email: firstname.lastname@example.org.
pre-1980 levels until 2049. The fact remains that a great deal of addit- ional action will be essential to ensure that the ozone layer remains safe for current and future generations. At present, some serious problems are undermining the successful protection of the ozone layer. Effective implementation faces several main challenges — for example, illegal trade in ozone-depleting substances. The role of developing countries is still a major concern and in regard to global warming it is important to emphasise the linkage between Montreal and the Kyoto Protocol. This year the Montreal Protocol is celebrating its 20th Anniversary. It represents a good opportunity to look back at all measures already taken by parties to prevent further ozone depletion and to acknowledge obtained achievements. But on the other hand, this anniversary is an even better opportunity to observe that the Protocol’s work is far from done.
When the Montreal Protocol on Substances that deplete the Ozone Layer was signed by twenty-four countries and the European Community in September of 1987, it was hailed as a milestone in international environmental diplomacy. And indeed, the Montreal Protocol still represents a major political and diplomatic achievement in the international effort to protect stratospheric ozone. Designed to control the production and consumption of ozone-depleting chemicals, the Protocol provides for a gradual phase-out of chlorofluorocarbons (“CFCs”) before irreversible damage is done to the Earth’s ozone layer. It marks the first effort of the international community to avert an environmental crisis, instead of waiting for the crisis to occur before acting. By most accounts, the treaty process for addressing ozone depletion is an unqualified success and the process itself is particularly impressive.
This year the Montreal Protocol is celebrating its 20th Anniversary. This represents a good opportunity to look back at all measures already taken by parties to prevent further ozone depletion and to acknowledge obtained achievements. But on the other hand, this anniversary is an even better opportunity to observe that the Protocol’s work is far from done. While scientific, environmental, economic, and social conditions have evolved, the Protocol still has to face various unforeseen problems and has to rise to many different challenges. This article examines the problem of ozone depletion, the enactment of the Montreal Protocol, as well as its unforeseen success, and remaining challenges for its 20th Anniversary.
Organisationally, the article begins with the discovery of the threatening issue of ozone depletion and ends with the current version of the Montreal Protocol. As the Protocol is still hailed as a landmark treaty, there will be emphasis on the various aspects of the Protocol which have led to its extraordinary success in the international environmental law sector. However, the fact remains that a great deal of additional action will be essential to ensure that the ozone layer will be safe in future. Another remarkable aspect of the ozone-depletion problem is its interconnection with the issue of global climate change. As these problems are far from being solved, the analysis therefore focuses next on these existing problems and places emphasis on the main challenges for the future. Finally, the article concludes in trying to give important improvement proposals and recommendations for the parties to the Montreal Protocol regarding their envisaged meeting for the 20th Anniversary.
2. OZONE DEPLETION AND THE MONTREAL PROTOCOL
Hovering some 10–16 kilometres above the Earth’s surface, the Earth’s protec- tive ozone layer filters out dangerous ultraviolet radiation from the sun and, in so doing, protects the health and environment of all of the Earth’s inhabitants.1 Modern science suggests that the Earth’s ozone layer was formed some 400 million years ago and remained practically undisturbed for all that time; but, as early as 1974, speculation occurred that the ozone layer was subject to depletion.2 With a sense of deep concern, the world community received the hypothesis of two chemists that the ozone layer might be threatened by the continuing emissions of chlorofluorocarbons (CFCs),3 a widely used set of industrial chemicals.
2.1 From Theory to Action — the Road to Montreal
The hypothesis of the two chemists, Rowland and Molina, aroused extensive media interest, which led to urgent calls for action to be taken to study this issue and take measures to deal with it. Scientists and policy-makers alike rose to the occasion. Fortunately, even though the theory was yet unproven, many countries were convinced of the immediate need to take precautionary action,
and in the late 1970s several took their first steps towards banning CFCs in non- aerosol uses.4
While these early efforts were important, they were not able to stem the extensive growth in the use of CFCs throughout the world, but as research into ozone depletion continued through the early 1980s, so did the calls for concerted global action to deal with the problem of CFCs.5 But many countries continued to hesitate because there still was not enough data to provide definite answers about the cause of newly discovered ozone decreases and, therefore, still no proof of the link between the industrial use of CFCs and the “ozone problem”. In addition, CFCs were an integral part of industrialised society, serving as refrigerants, propellants, insulators, and solvents with many industrial and domestic applications, and an everyday life without those substances seemed hard to imagine.6
However, the calls for concerted global action to deal with the problem of CFCs gave rise to the first international agreement on ozone depletion in 1985. Twenty nations and the European Community signed the Vienna Convention for the Protection of the Ozone Layer. This marked the first time in history that the international community adopted anticipatory safeguards to an environmental threat.7 The “Vienna Convention” recognised for the first time the general obligation of states to refrain from activities that modify the ozone layer and called for international co-operation in researching, monitoring, and exchanging information on the ozone issue.8 However, it did not include either substantive provisions or binding controls on the production and consumption of ozone- depleting chemicals; but, despite this apparent weakness, the Convention was important as a framework treaty, designed to be supplemented by more specific protocols as science progressed and further agreement could be reached.9 Thus, for example, it created an ozone secretariat and authorised it to convene workshops and negotiations towards the goal of creating a protocol with bind- ing emissions reductions.10 Furthermore, the Vienna Convention established a schedule for regular party meetings to discuss new scientific discoveries and a process for participating countries to create environmental regulations.11 Because there was no consensus among the parties as to the specific controls
needed, the Convention called for the adoption of protocols pursuant to the general obligations of the Convention.12
This agreement coincided with the initial proof that the hypothesised stratospheric ozone depletion was actually taking place above Antarctica: in 1985, scientists discovered severe thinning of the ozone layer over Antarctica due to human emissions of bromine and chlorine.13 Satellite measurements had confirmed that an Antarctic “ozone hole” had reappeared each austral spring and, despite some variation from year to year, it had generally grown larger. This term ozone hole, which, strictly speaking, is not entirely accurate, captured the public imagination and served international efforts to mobilise more support for global action.14
In the light of the first real proof of ozone depletion, many more who were concerned about its potentially catastrophic effects were dissatisfied with the emphasis placed by the Vienna Convention on research rather than on action to mandate reductions in the use of ozone-depleting chemicals. Thus, negotiations for a protocol, which had already begun in December 1986, left negotiators facing an uphill battle.15 Only six nations had ratified the Vienna Convention: Canada, Finland, Norway, Sweden, the United States, and the Soviet Union. In addition, while negotiators had to regulate a $100 billion global industry, alternatives to CFCs were either inadequate or nonexistent.16 But negotiators overcame these obstacles and took “a giant step forward” with the Montreal Protocol on Substances that deplete the Ozone Layer, signed in September 1987.17
2.2 The Montreal Protocol — a Success Story
The Montreal Protocol on Substances that deplete the Ozone Layer set legally binding controls on the national production and consumption of ozone-depleting substances (“ODSs”), with complete phase-out as the final goal.18 It also took an
Freon: Can the New Licensing System Stop Illegal Trafficking?” (1997–1998) 16 Dick Journal of Environmental Law, at 639.
(Cambridge, Mass, Harvard University Press, 1991) 68.
innovative approach to the issue of enforcement, adding incentives for countries to join the agreement.19
The Protocol has been hailed as a landmark treaty, and indeed, the effective- ness of the ozone-depletion regime is unparalleled in international environmental regulation. Since 1987, the number of ratifications and accessions to the Protocol has risen to over 190. This high degree of participation has contributed to global compliance with the Montreal Protocol targets.20 Although problems persist, there is a general agreement that the ozone regime has been a success.21 There are multiple factors that have enabled its achievements and its success, and the most important ones are described below.
The first steps taken by the Vienna Convention were rather tentative and the negotiators working on the Montreal Protocol clearly understood that the science of ozone depletion was evolving quickly and that further actions would have to be taken on the basis of that science, as well as on their technical and economic feasibility.22 Evidence that the Montreal Protocol has achieved its goal of being a flexible treaty can be seen from the five times it has been amended to accommodate the changing needs of society and from the acceleration of the phase-out schedules of substances that deplete the ozone layer.
The London Amendment in 1990 included a ban on additional CFCs and two solvents and included restrictions on trade with non-parties.23 In addition, the financial mechanism was established (Art 10 of the Protocol) for providing financial and technical assistance to developing countries, and the amendment further introduced HCFCs (Annex C, Group I substances). The Copenhagen Amendment in 1992 introduced control measures for HCFCs and added control measures for both the production and consumption of two more new groups of substances.24 The Vienna Amendment (1995)25 and the Montreal Amendment
(1997)26 only tightened controls of substances and revised baselines for the parties, while the last Amendment in Beijing (1999)27 introduced much-needed control measures for production for HCFCs, imposed restrictions on trade with non-parties for these HCFCs, and further added controls for another group of substances.
This step-by-step approach allowed the parties to adapt to evolving scien- tific, environmental, economic, and social conditions. Negotiators were able to reach international agreement before scientific certainty was attained, and could then alter the regime in response to scientific advances and public opinion.28 In addition, the same states were required to repeatedly negotiate with each other, which decreased incentives to defect or free-ride and increased incentives for co-operation.29
Another hallmark of the Montreal Protocol, proving its flexibility of imple- mentation, was that, while the countries agreed to meet specific numerical reduction targets within agreed timeframes, no rules were laid down as to how those reductions were to be achieved. This allowed countries to experiment with different approaches tailored to their specific circumstances and to develop, manage, and adjust their implementation plans to enable them to achieve the agreed targets in the most efficient way possible.30
International scientific and technical co-operation and consensus was essen- tial to policy development on the ozone-depletion issue. And while Rowland and Molina’s hypothesis led to international recognition of the human-induced depletion of the ozone layer and the discovery of the ozone hole galvanised public opinion, policy-makers were propelled towards the enactment of inter- national solutions.31 Therefore, the Protocol called for multilateral and bilateral
Parties to the Montreal Protocol on Substances that deplete the Ozone Layer, Vienna, 5–7 December 1995 <http://ozone.unep.org/Meeting_Documents/mop/07mop/MOP-7-12E.
pdf> (at 31 May 2007).
co-operation, specifically through international organisations devoted to research, exchange of information, and development of public awareness.32 The accord established requirements for data reporting, calling for the United Nations Environment Programme (“UNEP”) to convene a meeting of government experts to recommend to the parties measures for co-ordinating data on production, imports, and exports.33 Furthermore, the final Protocol included a provision stating that, at least every four years, a review of the best available scientific, environmental, technical, and economic information should be published.34
More scientific input was provided by the institutionalisation of scientific assessment panels, composed of experts in each of those fields, to help aid the parties in their decision-making. Those professionals come from governments, industry, and civil society within developed and developing countries.35 Over time, their assistance to the parties has increased and developed and they now provide comprehensive annual updates to the parties in which answers are given to the numerous technical queries that the parties pose.36 These assessment panels have contributed greatly to the success of the Protocol.
The most crucial target of the Protocol was the control of ozone-depleting substances. Negotiators wanted to define which chemicals were to be con- trolled, the manner of their control, and the extent of their control. The initial Protocol of 1987, which covered the control of just eight chemicals, required only a 50 per cent reduction in CFCs and a freeze on halons, but tightened control measures followed quickly. In recognition of the global nature of the problem of ozone depletion, the parties agreed on common but differentiated responsibilities for developing countries but, nevertheless, felt that controls should extend to all countries.37 In terms of what was to be controlled, the nego- tiators agreed to control of both production and consumption, the latter being defined as production plus imports minus exports.38 This unique definition had the consequence of capping both the level of production and the quantity of the substances that actually remained in the country each year.39
However, the actual element of the ozone regime’s success was the use of
substance phase-outs, the so-called “targets and timetables” approach.40 This approach sets restrictions concerning only the dates when substances have to be phased out and allows states the flexibility to choose their own means of phasing out these restricted chemicals. This increased the number of parties willing to join the regime and also gives states the freedom to ease economic adjustment by choosing the most cost-effective means of implementing reduction commitments.41 By choosing this approach a regulatory signal was sent to CFC producers that investments in alternatives would be profitable because the phasing-out timetable created certainty that all ozone-depleting substances would soon be radically restricted, if not phased out altogether. And the benefit quickly became apparent: CFC producers recognised that CFCs, halons, and their associated technology would soon be obsolete and that they had to be the first to discover and market CFC alternatives to be sold on a global scale.42 Furthermore, once substitutes became available, it became significantly less likely that developing nations would invest in obsolete CFC technology, and thus market forces pretty much drove the implementation process.43
As of 2005, the parties to the Protocol had phased out the production and consumption of over 95 per cent of all the chemicals controlled by the Protocol.44 Global observations have verified that atmospheric levels of key ODSs are slowly decreasing and it is believed that with implementation of the Protocol’s provisions the ozone layer should return to pre-1980 levels by 2050 to 2075.45
Another factor that has been identified as contributing to the success of the ozone regime is its recognition of the common but differentiated responsibility principle for developing nations.46 The main background to this recognition was that developing countries argued forcefully for special consideration because they felt that it was inequitable for them to be denied the CFC-based technologies that played an important role in the prosperity of industrialised
nations. These developing nations, such as China, India and Brazil, were at first reluctant to join the ozone regime.47
Clear evidence among the parties existed that the Protocol’s principal objective of halting and eventually reversing ozone depletion would not be achieved without the effective participation of developing countries.48 The Montreal Protocol assumed that, barring exceptional circumstances, environ- mental protection measures placed a greater burden on developing countries than on advanced industrial societies.49 Article 5 of the Protocol gave developing countries that are parties to the agreement an extra ten years to meet the established control measures.50 In addition, producing countries were permitted to increase their output of CFCs and other controlled substances beyond what would otherwise be allowed as long as the excess was exported to Article 5 parties during the ten-year grace period. Furthermore, the London Amendment provided for transfer of the “best available, environmentally safe substitutes and related technologies” from industrialised to developing countries.51
Finally, the Montreal Protocol and the London Amendment created a multilateral fund to facilitate compliance in developing nations.52 With the assistance of the multilateral fund, developing countries have been able to permanently phase out and eliminate ODSs that constituted over 70 per cent of substances that they used to produce various products.53
In terms of health benefits, controls implemented under the Protocol have enabled the global community to avoid millions of cases of fatal skin cancer and tens of millions of non-fatal skin cancer and cataracts.54 While the Protocol’s assessment panels have not made specific estimates of the number of diseases that have been avoided, the latest estimate by the United States Environmental Protection Agency is that, by the year 2165, in the United States alone, actions to protect the ozone layer will have saved some 6.3 million lives that would have otherwise been lost to skin cancer.55
Moreover, because many ODSs are also potent greenhouse gases (“GHGs”) that contribute to climate change,56 their phase-out under the Montreal Protocol has provided an often overlooked bonus for climate mitigation.57 The global reduction in ODSs from peak 1990 levels had, by 2000, achieved a net integrated reduction in global warming gases of approximately 25 billion tonnes of carbon dioxide equivalents.58 These significant reductions make the Protocol one of the prime global contributors in the fight against global warming.
The Montreal Protocol on Substances that deplete the Ozone Layer represents a major political and diplomatic achievement in the international effort to protect stratospheric ozone. It has been ratified by almost all nations in the world — at last count, more than 190 nations. Nations are generally complying with their obligations: global emissions of ozone-depleting chemicals have been reduced by over 95 per cent and atmospheric concentrations of such chemicals have already been declining or are at least expected to decline in the coming decades. Therefore, the Montreal Protocol, the foundation for this process, stands as an extraordinary and even spectacular success story. In addition, in 2006 recognition of the Protocol from the political side came in the form of a statement from the United Nations Secretary-General Kofi Annan, who said that “the Montreal Protocol on Substances that deplete the Ozone Layer is effec- tive and working. Since the entry into force of this multilateral environmental agreement, there has been tremendous progress in global efforts to repair the ozone layer. As a consequence, there are now early signs that we are on the road to recovery of this precious life-support system.”59 Furthermore, the Montreal Protocol is recognised in the United Nations 2006 report on the Millennium Development Goals, under Goal 7, as a global success story for its work in catalysing global action to help reduce the amount of chemicals damaging the ozone layer.60
3. EXISTING PROBLEMS AND CHALLENGES FOR THE FUTURE
Unfortunately, there is still no room for complacency, and the Montreal Protocol’s work to protect the ozone layer is far from done. In 2006 scientists recorded nearly the largest ozone hole ever over Antarctica, and new data indicates that the recovery of the ozone layer above Antarctica will be delayed by fifteen years, with a return to pre-1980 levels not occurring until 2065.61 Ozone layer recovery at mid-latitudes is also delayed and will not return to pre- 1980 levels until 2049.62
While the Protocol has been hailed as an extraordinary success so far, the fact remains that a great deal of additional action will be essential to ensure that the ozone layer remains safe for current and future generations. At present, some serious problems are undermining the successful protection of the ozone layer. Effective implementation faces several main challenges.
3.1 Illegal Trade in Ozone-Depleting Substances
When any substance is banned, it immediately creates a potential black market, and ODSs are no exception to this rule. The black market in ozone-depleting substances was an unforeseen but perhaps not unforeseeable consequence of the Montreal Protocol process.63 In the mid-1990s illegal trade in ODSs had grown to an alarming level. Though reliable figures on the scope of illegal trade are difficult to come by, it is estimated that between 16,000 and 38,000 tonnes of illegal CFCs were traded worldwide during 1995.64 In some US ports, CFC smuggling was second only in value to the smuggling of narcotics, and in some areas of the country illegal CFCs even had a higher ratio than cocaine.65 The US is still the largest black market destination for ODS chemicals, many of which are smuggled through Mexico.66 In 2001 there was evidence of a thriving illegal
trade in CFCs and other ODSs across Asia that has been identified as part of a dramatic increase in smuggling across developing countries.67
According to Environmental Impact Assessment (“EIA”) investigations, hundreds of tonnes of illegal ODSs are smuggled, in particular, into India each year. Between 1999 and March 2000 more than 800 tonnes were smuggled, totalling 12 per cent of national consumption.68 In another example, a report in the Japan Times said that more than 100,000 bottles of CFC-12 have been circulating in Japan, which have likely been illegally imported.69 Another report, using Singapore as a case study, said that Singapore and Dubai are major transit points in illegal trade and chemical dealers make between 75 per cent and 225 per cent profit on each kilogram of the CFCs, depending on where they are sold.70 Illegal trade is currently estimated to represent about 10–20 per cent of all trade in ODSs, of which CFCs alone comprise 7,000–14,000 tonnes per year, with a value of US$25–60 million.71 It is quite obvious that illegal trade in ODS substances is a problem of global concern, but why did this worldwide black
Though entirely unintentional, there are elements of the Montreal Protocol that actually contribute to illegal trade.72 The black market first originated in an effort to circumvent a gradual excise tax imposed on CFCs by the US government in 1990.73 This tax was designed to encourage consumers to make the transit- ion from CFCs to more ozone-friendly substances. But importers could make substantial profits by avoiding payments of the tax when they smuggled CFCs into the United States from developing countries.74 While tax avoidance remains a large motive for illegal trade, since the 1996 phase-out it has primarily been
due to the disparity between supply and demand. And this disparity in particular is caused by the different phase-out dates between developing and developed states. Due to economic and technical considerations, not all countries were required to phase out ODSs at the same time. The ten-year grace period given to Article 5 countries opened a tremendous potential for smuggling CFCs and other ODSs into non-Article 5 countries after their 1996 phase-out.75 Also, even though non-CFC chemicals were less expensive than CFCs, the problem arose because, generally, equipment must be retrofitted, or sometimes completely replaced, in order to use alternatives.76 One may argue that this problem will be solved when all CFC-using equipment is finally replaced with newer technology that can function on alternatives, but as phase-out dates for their alternatives like HCFCs approach, it can be anticipated that illegal trade in these substances will develop as well.77
Another cause for illegal trade is the difficulties faced by countries with economies in transition with production capabilities. These countries are not actually phasing out production when they are supposed to do so. A number of countries in Eastern Europe and the former Soviet Union have experienced difficulties complying with the terms of the Protocol due to the political and economic upheavals they have experienced in the last decade.78 There has been an increase in financial incentives to sell these illicit CFCs on the black market for foreign currency and it is believed that Russia in particular produces much of the black market CFC.79 But whereas Russia was thought to be the main source of illegal CFCs for most of the 1990s, the problem now seems to have shifted to developing countries, particularly China, where ODSs have been legally produced but then diverted into illegal markets in developed countries.80
A third reason for the existing black market is that smuggling CFCs and other ozone-depleting substances is relatively easy. Most ODSs, including CFCs and HCFCs, are odourless gases or liquids that boil at low temperatures and, therefore, are difficult to distinguish from ozone-friendly substitutes, such as HFCs, which are also gases without scent and/or low-boiling compounds.81 Furthermore, the chemical names of ODSs and their non-ODS counterparts may look very similar to those on official checking documentation, while to
make matters worse, these substances are often imported or exported under trade names only.82 Often, a smuggler need only change around the names of the chemicals in question in order to confuse the customs officer and cross the border. A lack of international enforcement exacerbates the situation.83
Finally, there is a loophole in the Montreal Protocol itself. Recycled sub- stances are not subject to control measures contained in the Protocol, other than a requirement to report the quantities traded, and it is difficult to distinguish between new and recycled substances. New CFCs are disguised as recycled, while new CFCs and halons destined for Article 5 countries are diverted into local markets.84
Even though the black market problem has existed since the establishment of the first ODS phase-out, the large scale of illegal trade continues and is still of great concern. Perhaps the most obvious effect of the black market is the direct harm that the illegal CFCs inflict upon the Earth’s ozone layer. All scientific studies and projections with the productions that underlie the Protocol’s restrictions assume 100 per cent compliance with the production and consumption quotas set for each country.85 But the continuing trade in these illegal substances is certain to delay the ozone layer’s recovery and increase the Earth’s risk of biological harm from ultraviolet rays.86
Another remarkable aspect is that the black market might have consequences for future multilateral environmental agreements. Having taken into account that action on transboundary environmental agreements is always difficult, success depends upon the parties’ desire and ability to implement and enforce the agreement made. If the Montreal Protocol, which regulates only a small variety of products, is not able to deal with the problem of the black market, future attempts to address more complex global environmental issues are certain to present greater problems.87
If there are elements of the Montreal Protocol that actually contribute to illegal trade, could the Protocol have been designed or implemented differently to
<www.epic.er.doe.gov/epic/docs/718.pdf> (at 5 June 2007).
reduce the likelihood of illegal trade? First of all, it is important to know that the very factors that gave rise to the black market are among those that have made the Montreal Protocol as successful as it has been.88
The problem could have been tackled by requiring all countries to have the same phase-out schedule, because this would have meant no grace period for developing countries. But this way of avoiding illegal trade would have been inequitable as well as economically and politically unrealistic — at least with- out substantial additional financial support through the Multilateral Fund.89 Similarly, an accelerated phase-out would have been a financial overload for industry and consumers. The advantage to the ozone layer from this faster phase- out could have been dwarfed by the damage caused by black market ODSs.90 Another main contributor to the black market is the excise tax that makes legal ODSs at least ten times more expensive than illegal ones. The excise tax within the US and Europe, however, also helped make the phase-out politically possible, and certainly made it happen more quickly.91 The increased cost of ODSs relative to substitute chemicals gave industries the incentive to make the switch much faster than they otherwise would have.92 A Montreal Protocol without these elements, while perhaps less likely to lead to a black market, would at the same time be less likely to rescue the ozone layer as effectively as
the current treaty has.93
Nevertheless, measures to curtail or minimise illegal ODS trade are possible and some have already been taken by the parties to the Montreal Protocol. After having realised the seriousness of the problem, in 1997 the parties adopted a new licensing system to control trade. It was hoped that this system would encourage countries to track CFC movement in and out of their borders and discourage international illegal sales.94 The system allows for better cross- checking of information between exporting and importing countries, and developing countries can receive financial assistance in establishing licensing regimes from the Multilateral Fund.95 Many Article 5 countries have already adopted licensing systems and now require strong enforcement to make them work. However, the 1997 system does not address the mislabelling, outright non-compliance, shipment re-routing, or unsuspecting purchaser problems.96 Therefore, further stringent enforcement of national laws is extremely
important. Key measures could include an improved customs classification of ODS-containing mixtures, the development of a labelling/marker system for ODSs, and a further clarification of the difference between ODS-containing mixtures and ODS-containing products in customs codes.97
And a good start has already been made: In June 2003 UNEP and other organisations launched a co-ordinated international effort that emphasises more efficient training for customs officials on the front line.98 The “Green Customs” initiative aims to build capacity among border police and customs authorities, and besides UNEP, involves Interpol, the World Customs Organization, and among others the Secretariat of the Montreal Protocol.99 However, as long as trade in ODSs between Article 5 and non-Article 5 countries continues to be legal, controlling illegal trade will remain a challenge that could prove to be even more difficult than enforcing a global ban on these substances.100
3.2 The Role of Developing Countries
Since the inception of the Montreal Protocol in 1987, a question of special con- cern involves the treatment of developing countries. While CFC consumption in the beginning was low in those countries, their domestic requirements were increasing enormously and are increasing still further.101 Chlorofluorocarbons had been essential to the progress of industrialisation for the countries of the North, and others at early stages of development were likely to use these cheap, safe chemicals in their process of industrialisation as well.102 Moreover, the problem had clearly been created by Northern industries, and the concern about the environmental problem was most prevalent in the industrialised world.103 India and China emphasised that nations with less than 25 per cent of the world’s population had been responsible for over 90 per cent of the world’s CFCs.104 In the absence of sufficient incentives to join the agreement, developing countries showed every sign of remaining outside the regulatory system, and by the time of the London negotiations in 1989 the only major
CFC-using developing countries that had joined the agreement were Mexico, Nigeria and Venezuela.105
The 1987 Montreal Protocol on Substances that deplete the Ozone Layer is one of the first multilateral environmental agreements (“MEAs”) to incorporate a system of common but differentiated responsibilities into its provisions by administering different obligations for developed and developing states.106 To assist developing countries, the Montreal Protocol grants a ten-year grace period during which developing countries may delay compliance with the Montreal Protocol’s control measures on ODSs.107 The Protocol also stipulates that developed countries must help developing ones comply through technical assistance.108 The most innovative and essential element in bringing developing states into the agreement was the elaboration of a funding mechanism.
At their second meeting the parties to the Montreal Protocol established a financial mechanism, which included a Multilateral Fund. The purpose of the Multilateral Fund is to enable developing countries to implement their com- mitments under the Protocol. Only the non-Article 5 parties contribute to the Fund, which pays the agreed incremental costs to be incurred by developing countries for the phase-out of their ODS consumption and production.109 An Executive Committee of 14 countries, chosen by the parties every year, admin- isters it, with seven representatives coming from developing countries and seven from developed countries.110
The parties to the Protocol have attempted to structure the financial mech- anism so that it will be fair to both the developing countries receiving the aid and to the industrialised countries that are giving it. Therefore, the purpose of aid is very specific to the objectives of the agreement as a developing country’s right to receive it is not recognised in general but only in the context of the particular multilateral objectives to which that country is a declared party.111 Furthermore, a developing country receiving aid through the mechanisms of the Protocol
does not have the sovereign right to use those funds as it wishes because the path between the conflicting interests of the South, which wants to get as much as possible, and the North, which wants to give as little as necessary, is to ensure that the aid is used in the most efficient manner possible.112 If corruption and waste exhaust the funds in an aid package before the related project objectives are met, the recipient country will not be entitled to more aid.113 Finally, the right to receive aid is not open-ended. There is a clearly identifiable point at which the industrialised parties’ obligation to an Article 5 party may be considered ful- filled.114 In the case of the Montreal Protocol, the objective is the elimination of technologies that use ozone-depleting substances.
After the creation of the Multilateral Fund, several practical difficulties with funding for developing countries became apparent. Of the $393 million promised to the Fund by developed countries for 1991–1994, only $216 million had been received and, in addition, although the Multilateral Fund gave the implementing agencies $153 million to distribute, they had only released a sixth of the amount, or $25 million.115 In 1994 India claimed to represent all Article 5 countries and threatened to withdraw from the Montreal Protocol if these funding problems were not solved. In addition to these disbursement problems, the Multilateral Fund has been criticised for perpetuating a perceived attempt by the developed countries to exclude developing countries from markets for ODS alternatives. At the 1994 meeting, Indian officials claimed that multinational industries that produce and market ODS substitutes pressure Fund administrators to refuse funding for projects that would compete with these industries.116
However, an even more serious problem has to be faced and is still not solved. With the rapid industrial development of the former major developing countries, their production capabilities have grown dramatically. China now accounts for 90 per cent of global production of halons and the emissions of these substances are rising annually by 3 per cent, despite the phase-out in developed countries.117 While the developed world has almost completely stopped the use of a number of ODSs, the developing world has increased its production and consumption of these substances. And whilst they are taking advantage of their bargaining position to demand greater compensation or assistance with phase-out, it is not clear whether they will be able, or willing, to meet their phase-out obligations.118 Another aspect of this problem is that
weak states’ implementation programmes almost completely depend on the Multilateral Fund to design and manage their own environmental policies.119 As a result, the state has little involvement in managing the environmental con- cerns itself, which defeats the purpose of building capacity, and even worse, reliance on the Fund creates a moral hazard for weak states because it can create a situation in which these states improve their environmental programmes only enough to make the Fund available to them.120
According to Article 7 of the Montreal Protocol, the parties are required to provide statistical data on production, imports, and exports of each of the controlled substances to the Implementation Committee.121 But many countries, and developing countries in particular, have failed to report information sufficient to establish accurate baselines from which phase-out schedules can be established. As the Montreal Protocol requires self-reporting, in which the state reports on its own ODS use, these requirements are successful only if countries do not misrepresent the data. Weak states’ notoriety for corruption creates a high likelihood of intentional inaccurate data.122 The Implementation Committee concluded that many developing countries lacked the capacity to report rather than the willingness, which, despite the absence of such baselines could lead to serious difficulties, particularly in monitoring the compliance of developing countries.123 Thus, it is incredibly difficult to determine whether weak states are meeting their obligations to reduce ODS use.124 But if weak states do not successfully complete their reports, the data for the monitoring authorities will often be unreliable. Thus, determining developing states’ non-compliance will be a difficult feat for the Implementation Committee and the Secretariat.
According to the Protocol, between the beginning of 2007 and the end of 2009, developing countries in particular will have to eliminate the last 20 per cent of their production and consumption of CFCs, and experience has shown that this final amount is always the hardest to phase out.125 The challenge is even higher
when it is realised that the majority of the remaining CFC consumption is used for servicing millions of refrigerators and mobile air conditioners.126
The challenge for the future seems to be that developing states require capacity strengthening to implement the Montreal Protocol and weak states need even more compliance assistance to build capacity. Without widened participation, these countries’ ability to comply will remain tied to the Protocol’s assistance.127 Furthermore, with increased capabilities, weak states may have a better chance of fulfilling their reporting requirements under the Protocol. Ultimately, the aim for weak states will be to establish performance-monitoring agencies capable of sophisticated monitoring of their ODS use, and until weak states are able to maintain these agencies on their own, more financial assistance should go towards developing these essential monitoring agencies.128
Having taken all these factors into account, the Montreal Protocol can be more effective concerning the compliance problems of developing countries if Article 5 countries are required to propose appropriate projects and then implement them accordingly. The projects must be closely monitored by implementing agencies to ensure Multilateral Fund resources are spent in beneficial ways that fall within the definition of incremental cost.129
3.3 The Montreal Protocol and Climate Change
Over the last thirty years, climate change and depletion of the ozone layer have been widely believed to be the world’s largest environmental problems. The world’s leading scientists have confirmed that global climate change and stratospheric ozone layer depletion are inextricably linked.130 And indeed, the two problems have many similarities.
Both problems involve the effects of emissions from man-made technol- ogies that come from diverse nations and threaten to cause large-scale harm.131 This means, in particular, that no nation is able to eliminate either problem by itself and not even able to make significant progress on either problem on its own. Due to the fact that there is a diversity of contributors, both seem to be best handled through international agreements. In addition, ozone-depleting chemicals as well as greenhouse gases stay in the atmosphere for an extremely long time and the relevant risks are difficult to reverse. The underlying problems will hardly be eliminated all at once.132
132 See ibid.
Another remarkable aspect is that both raise serious issues of intergener- ational and international equity.133 Wealthy nations are the principal contributors to both ozone depletion and climate change, and therefore poor nations should be compensated for their willingness to enter into any international agreements that reduce emission levels. Wealthy countries might owe significant duties of financial and technological assistance, either to help in emissions reduction or to pay for adaptation to the underlying problems.134
But the most obvious linkage between ozone depletion and climate change is the fact that some ODSs, such as CFCs, and their replacements, notably HCFCs and HFCs, are also powerful greenhouse gases and their continued pro- duction and consumption also contribute to climate change.135 This means that the problem of climate change is unlikely to be solved without regard to ozone depletion.
But the extraordinarily successful agreement, the Montreal Protocol, has served largely to eliminate the production and use of ozone-depleting chemicals, while the Kyoto Protocol,136 which should reduce the impacts of climate change and global warming, has spurred only modest steps towards stabilising green- house gas emissions. From the adoption of the initial Framework Convention on Climate Change,137 it took parties more than five years to agree on the Kyoto Protocol, which only came into force when Russia ratified it in 2005.138 Even though the Kyoto Protocol has now been ratified by over 130 nations, numerous nations are not complying with their obligations under the Protocol, and the United States firmly rejects the agreement.
The Kyoto Protocol has proposed reductions but has had limited success in reaching agreement among major greenhouse gas emitters and in achieving success for those countries that have committed to the process. Kyoto’s agreed- upon provisions run out in 2012, and the recent agreement by the European Union to achieve a 20 per cent reduction in greenhouse gas emissions from the 1990 baseline does not include China, India, and other major emitters.139 It seems to be that in comparison to the mature ozone regime, the international
133 See ibid, Introduction. 134 See ibid, at 2.
<http://unfccc.int/resource/docs/convkp/kpeng.pdf> (at 12 June 2007).
co-operation for protection of the Earth’s climate is still at an early stage of development.140
Because many ODSs are also potent greenhouse gases that contribute to climate change, their phase-out under the Montreal Protocol has provided an often over- looked bonus for climate mitigation. Their current contribution to radiative forcing is about 20 per cent of that of CO2. According to current research, the Montreal Protocol has helped both to reduce global warming, and to protect the ozone layer.141 Without the reductions achieved under Montreal, the amount of heat trapped due to ozone-depleting substances would be about twice as high as present levels, and climate protection already achieved by the Protocol alone is far larger than the reduction target set for the first commitment period of the Kyoto Protocol.142 By the end of the decade, the Montreal Protocol will have done more to mitigate climate change than the initial Kyoto Protocol reduction target, reducing emissions in terms of carbon dioxide equivalent to five to six times that of the climate treaty.143
Although the physical and chemical processes responsible for depletion of the stratospheric ozone layer and climate change are related, co-ordination between the Montreal Protocol and the global effort to avoid dangerous anthro- pogenic interference in the climate system has been limited and unsystematic.144 Some large sources of greenhouse gas emissions are only covered by the Montreal Protocol, and Kyoto, which regulates atmospheric emissions of six greenhouse gases, explicitly excludes all substances listed under Montreal. Major sectors using ODSs and their HFC/PFC substitutes include refrigeration, air conditioning, foams, aerosols, fire protection, and solvents.145 With regard to their close relationship, it seems very surprising that the current framework of international environmental agreements does not facilitate joint consideration of climate and ozone layer protection: the Montreal Protocol does not focus on
issues related to climate, and the Kyoto Protocol, on the other hand does not provide for any institutional link to the ozone regime. Also, the two relevant Secretariats have not formalised their relationship.146 There is currently no structure in place to assess ozone/climate trade-offs systematically.147
However, a joint co-ordination of the international ozone protection and climate protection efforts is necessary to avoid an overlap of the Montreal and the Kyoto agreements. For example, the provision of the Montreal Protocol’s phase-out process that allows developing countries to increase their production and use of HCFCs through to 2016 may seem reasonable from an ozone-only perspective, but in conjunction with provisions of the Kyoto Protocol it can create perverse incentives.148 HFC-23 is a rare but potent industrial gas produced almost exclusively by factories in developing countries, China in particular. Projects that reduce HFC-23, which is cheap to contain, generate huge numbers of CO2-equivalent credits, granted by the Kyoto Protocol’s Clean Development Mechanism, to sell into the EU.149 These credits are sold at a massive mark-up, as the price for credits in Europe tracks the cost of CO2 abatement, a much more expensive proposition. There is evidence that factories are ramping up production of HCFC-22 in order to boost emissions of HFC-23, so that they can make windfall profits from cutting back on HFC-23 later and selling the emission-reduction credits.150 Factories can hope to earn twice as much from selling their credits as they can from selling their refrigerants.151 Without doubt, Clean Development Mechanism projects supported by the Kyoto Protocol that plan to incinerate HFC-23, a by-product from the production of HCFCs, offer “perverse incentives” to the producers to continue to manufacture HCFCs and to sell carbon credits to the developed countries.152
Proper co-ordination of the two Protocols would entail simultaneous account-
ing for the adverse environmental effects of the jointly produced HCFC-22 and HFC-23, without the possibility of exploiting the provisions of one of the Protocols at the expense of the other.153 Co-ordination of the two regulatory regimes is necessary to effectively address the environmental concerns at stake. Yet it is not easy to see how this can be done in practice.154 Parties to the
Montreal Protocol could take the opportunity of the 20th Anniversary of the Protocol in September 2007 to strengthen the ozone regime’s ability with regard to the Kyoto Protocol to avoid future perverse incentives.
In conclusion, the issues of ozone depletion and climate change are inter- connected in various ways, and hence, so are the Montreal and Kyoto Protocols. Changes in ozone affect the Earth’s climate and changes in climate conditions affect the ozone layer, as ozone depletion and climate change are linked through a number of physical, dynamical, and chemical processes.155 Decisions taken or not taken under one Protocol certainly have an impact on the aims of the other.
As described above, the Montreal Protocol has in addition to its success in protecting the ozone layer, also been the most effective treaty so far in curb- ing greenhouse gases. Some of the substances regulated by the Protocol, such as CFCs, are greenhouse gases that are over ten thousand times more potent than carbon dioxide.156 But while studies prove that this extraordinary accomplishment has already delayed the effects of climate change by up to 12 years,157 there are currently serious problems on the horizon that require immediate attention.
Chief among these is the predicted, and already partially documented, exponential rise in HCFC-22 production and its by-product HFC-23, both potent global warming gases. The irony is that HCFCs were actually, at one point, part of the Montreal Protocol’s success story because HCFCs were industries’ answer to CFCs, which was originally the prime ODS in use. By getting developed and developing states’ industries to switch from using CFCs to HCFCs, substantial progress was made in combating ozone depletion, notwithstanding the fact that HCFCs themselves were still an ODS, albeit with much less of an impact than CFCs.158 At the same time, it turned out that HCFCs, while helping with ozone depletion, were a significant source of greenhouse gas emissions, which only compounded the climate change problem.159
The Protocol currently schedules HCFCs for an extremely long phase-out. Developed countries are effectively required to achieve a total phase-out by
(at 13 June 2007).
<http://www.opiniojuris.org/posts/1173 9 78501.shtml> (at 13 June 2007).
2020, while developing countries have until 2040, with a freeze in 2016 at 2015 levels.160 But that schedule was devised in the early 1990s, when HCFC-22 was used mainly in industrial nations. Developing countries were seen as too poor to ever afford much of the chemical.161 But now its increased use, particularly in developing countries, has heightened concerns over its potentially devastating impacts on both the ozone layer and the climate. The most widely used HCFC- 22 is 1700 times more powerful at warming the planet than carbon dioxide, and in addition, production of HCFC-22 results in by-product emissions of another greenhouse gas, HFC-23, which is 11,000 times more powerful than carbon dioxide.162
Use of HCFC-22 has soared in the third world with the economic growth of China, India, and other countries, along with the sharp drop in air-conditioning costs that has accompanied China’s growing skill in making them cheaply.163 And China, in particular, is stepping up exports to the United States of air conditioners that use the chemical, especially after the European Union finished phasing out the production and import of such air conditioners in 2004.164 Industry observers estimate that China exports over 14.8 million air- conditioning units per year, and in the last five years China has become the largest producer of air-conditioning units in the world, of which 90 per cent are currently produced with HCFC-22.165
An adjustment to the Montreal Protocol could reduce these greenhouse gas emissions caused by the increased HCFC production of developing countries. A first step has already been taken by a coalition of developing and developed countries since the beginning of 2007166 and the topic will probably be nego- tiated at the international conference of the Montreal Protocol in September 2007. This unique coalition of countries is pushing for an accelerated phase-out of HCFCs. Such an accelerated phase-out of the refrigerant could speed up by five years the healing of the ozone layer and could also cut emissions of global- warming gases by the equivalent of at least one sixth of the reductions called for
under the Kyoto Protocol.167 Furthermore, an accelerated phase-out of HCFC-22 would avoid the projected increase of HCFC-22 production and emissions of its “super greenhouse gas” HFC-23 by-product and would also reduce the perverse transfer of the old technology to manufacture HCFC-22 and its raw material to developing countries.168
However, the accelerated phase-out of HCFCs raises several issues that must be resolved by the parties as they proceed. The trend in the developing countries is working against an early phase-out because they enjoy exemptions from global environmental standards. The Kyoto Protocol is also lenient towards them, on the grounds that industrialised countries have released the great bulk of the offending gases, and developing countries should be allowed to catch up economically before taking on additional environmental costs.169 A big problem is also that no one has agreed what should replace HCFC-22. The chemicals requiring the fewest changes to air-conditioner designs avoid harm to the ozone layer but are still as potent in terms of global warming.170
Therefore, the parties need to ensure that developed countries will continue to fulfil their commitment to provide additional financial assistance to developing countries through the Multilateral Fund to ensure compliance. Unfortunately, the Multilateral Fund, designed to help developing countries cope with phase-out plans, has followed a policy of refusing to fund projects to phase out HCFC-22 in industries that have already received funding.171 The intent of this policy may have been to dissuade countries from seeking funding for conversion to HCFC-22 in the first place, and while some growth in HCFC consumption may be unavoidable and economically necessary for some developing countries, a more aggressive phase-out schedule is nevertheless technologically and economically feasible.172 This possibility could avoid the extremely high levels of growth otherwise projected.
Current emissions of ODSs and their substitutes are largely determined by historic use patterns. For CFCs and their substitutes, HCFCs and HFCs, a significant contribution comes from their respective banks.173 Banks are defined as the chemicals contained in equipment and products or stored in tanks. Even
173 Intergovernmental Panel on Climate Change, Technology and Economic Assessment Panel, supra note 56, at 8.
though developed countries have banned production and consumption of the most damaging ODSs, they have not banned use of remaining stocks or required that ODSs contained in existing equipment be destroyed.174 Large amounts of CFCs and other ODS substitutes such as HCFCs and HFCs currently exist in refrigerators, air conditioners, insulating foams, and chemical stockpiles, where they can leak. However, the Montreal Protocol does not place any controls on emissions from banks and provides minimal incentives for their recovery and destruction.175
But when equipment reaches the end of its useful life, the chemicals inside are usually released into the atmosphere. With limited incentives for recovery and destruction of ODS banks, most of the CFCs in banks will be emitted into the atmosphere over the next decade, with detrimental impacts for both the ozone layer and the climate.176 The largest part of emissions from foams is expected to occur after 2015 because most releases occur at end of life.177 In addition, the build-up of banks of relatively new applications of HFCs will, in the absence of additional bank management measures, significantly determine post-2015 emissions.178 In total, all emissions from banks by 2015 could be more than seven times the size of the emissions reductions initially targeted by the Kyoto Protocol.179 Therefore, key questions remain about how to deal, in an environmentally sensitive manner, with these very large banks of ozone- depleting substances, currently in used systems or inventories.
Even though there is still no solution for future regulating the ODS banks, emissions of CFCs and other ODSs from banks could be avoided or at least mitigated by creating greater incentives for their recovery and destruction. The Montreal Protocol could in two ways provide greater incentives for recovery and destruction.
Firstly, the Montreal Protocol could allow credits to carry forward for more than one year and to be transferred among chemical groups, where the destruction of an amount of CFCs would allow the production or consumption of an equal amount, on an ozone depletion potential-weighted (“ODP-weighted”) basis, of HCFCs.180 Secondly, greater incentives would be given by linking with the Kyoto Protocol to provide Certified Emissions Reductions under the Clean
Development Mechanism for the destruction of ODS banks.181 The destruction of banks would help ensure compliance, since the ODSs in banks could not be reused or recycled after the CFC ban enters into force in 2010 in developing countries.182
As is apparent, there are still various, serious problems undermining the successful protection of the ozone layer and several main challenges remain. However, the current situation is not hopeless and, as improvements are possible, the parties to the Montreal Protocol should take responsibility for their role in further safeguarding the ozone layer and the global climate by taking the following precautionary actions:
The Montreal Protocol is one of the most successful environmental agreements of all time for many reasons. One element that contributes to the ability of the Protocol to meet its goals is its flexibility and its ability to be changed and amended as needed. On the one hand, this flexibility allows parties to reach international agreement before scientific certainty is attained, and adjust the regime in response to scientific advances. On the other hand, parties are required to permanently negotiate with each other, which assures incentives for co-operation.
Another reason for its success is its multilateral and bilateral co-operation, specifically through international organisations for research and exchange of information, and through further measures for providing co-operation, as exemplified by the institutionalisation of scientific assessment panels. Furthermore, an element of the ozone regime’s success is the “targets and timetables” approach, which refers to the use of ODS phase-outs. States can keep the flexibility to choose their own means of phasing out restricted chemicals and still have the freedom to ease economic adjustment by choosing the most cost-effective means of implementing reduction commitments.
A further factor that contributes to the success of the ozone regime is its recognition of the common but differentiated responsibility principle for developing nations. No multilateral environmental agreement has ever before incorporated a system of different obligations for developed and developing states. The ten-year grace period which allows developing countries to delay compliance with the required control measures of ODSs, the provision of technical assistance, and the elaboration of the Multilateral Fund were main factors in bringing developing states into the agreement.
Finally, it is important to mention the benefits for health and climate change. Avoided in particular are millions of cases of fatal skin cancer and tens of millions of non-fatal skin cancers and cataracts. And, as many ODSs are also GHGs that contribute to climate change, their phase-out under the Montreal Protocol supports measures against global warming.
The past twenty years of the Montreal Protocol have witnessed great strides in the global attempt to safeguard the world from a mistake that could seriously affect future generations of life on our planet. However, the parties to the Montreal Protocol still have to face various challenges, and the meeting of the 20th Anniversary will be a good opportunity for discussing current problems and finding solutions. In particular, negotiators will have to handle the black market problem. As already discussed, the problem will not be solved when all CFC-using equipment is finally replaced with newer technology, because of approaching phase-out dates for their alternatives like HCFCs. Illegal trade in these substances will definitely develop as well.
Another question of special concern involves the treatment of developing countries. These countries, China and India in particular, have dramatically increased their production and consumption of ODSs and are often not able or willing to meet their phase-out obligations. Furthermore, they often depend financially on the Multilateral Fund to design and manage their environmental policies. Negotiators of the Protocol will have to find solutions to strengthen developing countries’ capacities to meet their obligations.
The biggest challenge, however, seems to be an appropriate and useful linkage between the agreements against ozone depletion and against climate change. Even though a joint co-ordination of the international ozone protection and climate protection efforts is necessary to avoid a disadvantageous overlap, the current framework of international environmental agreements, the Montreal Protocol and the Kyoto Protocol, does not facilitate joint consideration. There- fore, parties to the Montreal Protocol have to consider how they can strengthen the Protocol in a way that ensures perverse incentives are avoided whilst also ensuring that further steps against global warming are made possible.
While many challenges remain, we should be hopeful that the continuing efforts to protect the ozone layer will move forward in the same spirit of dedi- cation, co-operation, and innovation that characterised the initial efforts, and that the Protocol will go on to achieve its goal of protecting the ozone layer for this and future generations.
<http://ozone.unep.org/Meeting_Documents/mop/11mop/11mop-10.e.pdf> (at 31