ENVIRONMENTAL LAW

MONTREAL PROTOCOL ON SUBSTANCES

THAT DEPLETE THE OZONE LAYER,
MONTREAL, 1989

An Analysis

Project submitted by

SAMBRIDH GHIMIRE
ID NO. 2012
 MONTREAL PROTOCOL ON SUBSTANCES THAT DEPLETE THE OZONE LAYER, 1
1989

CONTENTS

1.1 Introduction.....................................................................................................................2

1.1 OZONE DEPLETION_____________________________________________________3

2. The Montreal Protocol......................................................................................................5

3. Transboundary air pollution and the Montreal Protocol..............................................7

4. Effects on India's Policy on the Protection of the Ozone Layer....................................8

4.1 APPROPRIATE POLICY DEVELOPMENT______________________________________9

4.2 THE ROAD AHEAD____________________________________________________10

5. CONCLUSION................................................................................................................12

BIBLIOGRAPHY..................................................................................................................14

ARTICLES______________________________________________________________14

BOOKS_________________________________________________________________15

1. HANDBOOK FOR THE MONTREAL PROTOCOL ON SUBSTANCES THAT DEPLETE THE OZONE
LAYER, (9th Edn. 2012).............................................................................................................15

2. Christos Zerefos et al., TWENTY YEARS OF OZONE DECLINE, (2009)..............................15

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.1 INTRODUCTION

Protection of the ozone layer emerged as a major political issue in the United States in the
mid-1970's. The use of chlorofluorocarbons (CFCs) in aerosol sprays was banned, and a
domestic environmental policy appeared to be taking shape. During the 1980's, however,
environmental issues lost their priority on the U.S. political agenda. Nevertheless, in the
international arena, and in the domestic jurisdictions of other nations, the environment in
general, and atmospheric protection in particular, became matters of increased concern.

On March 22, 1985, scores of national delegations convened in Vienna to discuss ozone
protection.1 At that meeting, the international community first acknowledged that ozone
depletion is a global problem, and the resulting agreement set the stage for international
control of atmospheric pollutants.2 The key element of this Convention is its establishment of
a working group to develop a protocol for control of ozone-depleting substances. The
participating nations adopted this protocol in Montreal on September 16, 1987.3

The Montreal Protocol (the Protocol) is a unique example of the international community
giving ongoing attention to a problem that was not yet fully understood at that point in time.
Scientific evidence supports the conclusion that ozone depletion is a serious problem, but the
resultant health effects had not been fully manifested.4 Nevertheless, the parties to the

1 Elizabeth DeSombre, The Experience of the Montreal Protocol: Particularly Remarkable,

and Remarkably Particular, 19 UCLA JOURNAL OF ENVIRONMENTAL LAW AND
POLICY 49, (2000-2002).

2 Anita Halvorssen, Common, but Differentiated Commitments in the Future Climate

Regime, 18 COLORADO

3 Elizabeth Barratt-Brown, Building a Monitoring and Compliance Regime Under the

Montreal Protocol, 16 YALE JOURNAL OF INTERNATIONAL LAW 519, (1991)

4 Holly Sims, The Stratospheres the Limit: India Addresses the Montreal Protocol, 35(3)
ASIAN SURVEY 268, (1995)

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 MONTREAL PROTOCOL ON SUBSTANCES THAT DEPLETE THE OZONE LAYER, 3
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Protocol (the Parties) agreed to reduce emissions of the responsible chemicals according to
a definite schedule.

In light of the tentative understanding of the situation, and to ensure flexibility for
strengthening the Protocol, the Parties decided to hold periodic meetings to reassess the
evolving scientific understanding of ozone depletion, and they agreed upon an uncomplicated
procedure for revisions and amendments. The process of revising and updating the Protocol
has required numerous meetings of the central working group, of which all nations are
members. Many smaller ad hoc and technical groups have also contributed to the process.
Twenty six official Meetings of the Parties have been held after the first in Helsinki.5

Although strengthening the control measures of the Protocol may have been the initial focus
of the revision process, it quickly became evident that accession to the Protocol by
developing nations had to become a priority. A British study estimated, for example, that
India's use and production of CFCs would increase ten-fold by the year 2015 if no restrictions
were introduced.6

A central objective of the working groups, then, is addressing the inadequacies of the
Protocol from the perspectives of these developing countries. To meet that objective,
technical and financial assistance necessary to facilitate compliance with the terms of the
Protocol must be secured. Thus, the creation of a Funding Mechanism and specific efforts to
encourage India and China to join the Protocol emerged as primary goals at the most recent
meeting of the Parties. The Montreal Protocol has been both acclaimed and criticized. The
speed with which agreements have been made, the number of Parties involved, and the
unique ongoing approach are certainly marks of progress. However, it has yet to be shown
that this process will result in adequate ozone layer protection. This Note explains the
structure of the process developing under the Montreal Protocol. It reviews the content of

5 http://ozone.unep.org/new_site/en/committee_documents.php?committee_id=1

6 Jeff Trask, Montreal Protocol Noncompliance Procedure: The Best Approach to Resolving
International Environmental Disputes?, 80 GEORGETOWN LAW JOURNAL 1973, (1991-
92).

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agreements reached to date and discusses the conflicts of interest which have precluded
further agreement.

.1 OZONE DEPLETION

Chlorofluorocarbons are chemical substances used primarily as coolants in refrigeration

systems. They also function as propellants in aerosols and foams, and have some specialized
medical uses.7 The chlorine contained in CFCs is a powerful ozone destroyer. Halons, another
family of ozone-depleting chemicals, are used primarily in fire extinguishers. Although
halons contain bromine, which has ten times the ozone-depleting power of the chlorine in
CFCs, they are used less often and are therefore of less concern.8 Methyl chloroform and
carbon tetrachloride also deplete the ozone layer and are used widely in manufacturing
processes; methyl chloroform is also used to clean computer chips.
Hydrochlorofluorocarbons (HCFCs) are the most widely accepted substitute for CFCs,
since they have only five to twenty percent of the ozone-depleting strength of CFCs.9
However, their use is potentially enormous, so they are currently the focus of some
concern.

When released into the air, CFCs move to the stratosphere and break down into their
constituent parts, the most harmful of which is chlorine.10 When scientists discovered a hole
in the ozone layer over Antarctica in 1985, the amount of chlorine in the stratosphere was two

7 K.J. Beron et al., Why Cooperate? Public Goods, Economic Power, and the Montreal
Protocol, 85(2) THE REVIEW OF ECONOMICS AND STATISTICS 286, (2003).

8 Olaf Morgenstern et al., The World Avoided by the Montreal Protocol, 35 GEOPHYSICAL
RESEARCH LETTERS LI68II, (2008).

9 Mario Molina et al., Reducing Abrupt Climate Change Risk using the Montreal Protcol and
other Regulatory Actions to Complement cuts in CO2 emissions, 106(49) PROCEEDINGS
OF THE NATIONAL ACADEMY OF SCIENCE 20616, (2009).

10 Christos Zerefos et al., TWENTY YEARS OF OZONE DECLINE, (2009).

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to three times its natural level.11 Currently there is about five times the natural level of
chlorine in the stratosphere.12 It is estimated that even if CFC production were to cease today,
this level would further increase to seven times the normal amount, because so many CFCs
have already been produced but not yet emitted into the atmosphere.13 For this reason, any
proposals for CFC phase-out should be judged according to the total CFC production
permitted, regardless of the percentage structure or time period of the schedule.

Ozone, the three-atom form of oxygen, is the only gas in the atmosphere that limits the
amount of harmful solar ultraviolet radiation reaching the earth.14 Chemical reactions
triggered by sunlight constantly replenish ozone over the tropics, and global air circulation
transports some of it to the poles. 15

Chlorine atoms in the stratosphere break down ozone into simple oxygen. As ozone is
depleted, the earth's surface receives more ultraviolet radiation, which promotes skin cancers
and cataracts, depresses the human immune system, and decreases crop yields and fish
populations.16 Projected increases in disease as a direct result of ozone depletion are
astounding.

11 Ibid.

12 HANDBOOK FOR THE MONTREAL PROTOCOL ON SUBSTANCES THAT

DEPLETE THE OZONE LAYER, (9th Edn. 2012).

13 Jason Patlis, The Multilateral Fund of the Montreal Protocol: A Prototype for financial
Mechanisms in Protecting the Global Environment, 25 CORNELL INTERNATIONAL LAW
JOURNAL 181, (1992).

14 Ibid.

15 Supra Note 5.

16 Mario Molina et al., Reducing Abrupt Climate Change Risk using the Montreal Protcol
and other Regulatory Actions to Complement cuts in CO2 emissions, 106(49)
PROCEEDINGS OF THE NATIONAL ACADEMY OF SCIENCE 20616, (2009).

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1989

The latest amendments to the Montreal Protocol permit production and emission of CFCs
over the next ten years.17 The effects this will have on chlorine levels and the ozone layer are
incalculable, because it is unknown whether the damage will progress at a linear or geometric
rate over time.18 Chlorofluorocarbon gases are cumulative. Once emitted, they remain in the
atmosphere for decades or even centuries. Thus, scientists are unable to determine how the
ozone layer will recover from CFC emissions or how long such a restoration process might
take.19

2. THE MONTREAL PROTOCOL

The 1987 Montreal Protocol resulted after almost fifteen years of scientific and diplomatic
debate. 36 The Protocol marked the first time national governments agreed to protect the
global environment by limiting well-established and profitable activities in order to prevent
disastrous environmental consequences.20 Unlike prior treaties, the Protocol set specific
emission reduction targets for ozone-depleting substances. The amendments from the 1990
London meeting go well beyond the provisions of the 1987 Protocol, and require a fifty
percent cut in consumption and production (compared to 1986 levels) of most ozone
depleters, including CFCs, by 1995, an eighty-five percent cut by 1997, and complete

17 See, in particular, Richard E. Benedick, Ozone Diplomacy: New Directions in

Safeguarding the Planet, enlarged ed. (Cambridge: Harvard UniversityPress, 1998).

1817.Frank Biermann, "Financing Environmental Policies in the South: Experiences from the
Multilateral Ozone Fund," International Environmental Affairs 9, no. 3 (1997): 179-218.

19 See Benedick, Ozone Diplomacy, Wolfgang Jung, Expert Advice in Global Environmental
Decision Making: How Close Should Science and Policy Get? ENRP Discussion Paper E-99-
14, Harvard University, 1999; Karen T.Litfin, Ozone Discourses: Science and Politics in
Global Environmental Cooperation (New York: Columbia University Press, 1994)

20 Ibid.

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elimination by 2000.21 Developing countries have a ten-year grace period for meeting this
schedule.22

The Protocol's noncompliance procedure, which gives parties the opportunity to resolve any
concerns about another party's compliance with the Protocol's mandates, was adopted on an
interim basis at the Second Meeting of the Parties in London. 40 Some parties are concerned
with the lack of specificity in some of the interim procedure's provisions, and the Ad Hoc
Working Group of Legal Experts on the Noncompliance Procedure has been requested to
continue to refine and specify the procedure.23

According to the interim procedure, if one or more parties have reservations about another
party's compliance with the Protocol, those concerns are submitted in writing to the
Secretariat24 along with corroborating information.25 The party whose compliance is at issue
receives the submission and has a "reasonable opportunity" to reply.26 The reply is sent to the
complaining parties and the Secretariat, who then forwards all information from the parties to
an Implementation Committee consisting often parties elected by all other parties to the
Protocol based on "equitable geographic distribution."27 A major function of the Committee is

21 Supra Note 6.

22 Supra Note 4.

23 Ibid.

24 Elizabeth Barratt-Brown, Building a Monitoring and Compliance Regime Under the

Montreal Protocol, 16 YALE JOURNAL OF INTERNATIONAL LAW 519, (1991).

25 Diane Doolittle, Understanding Ozone Depletion: The Meandering Road to the Montreal
Protocol and Beyond, 16 ECOLOGY LAW QUARTER 497, (1989).

26 Supra Note 10.

27 Supra Note 6.

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to receive, consider, and report on noncompliance submissions by the parties,28 and to try to
secure "amicable resolution" of the matter, keeping in mind the Protocol's provisions.29 The
Committee reports to the Meeting of the Parties, which may "decide upon and call for steps to
bring about full compliance with the Protocol, including measures to assist the Party's
compliance with the Protocol."30 The disputing parties report back to the Meeting of the
Parties about implementation of any decision regarding noncompliance actions.

3. TRANSBOUNDARY AIR POLLUTION AND THE

MONTREAL PROTOCOL

Observers have begun to understand the environmental damage caused by transboundary air
pollution only recently.31 For example, the effects of acid rain, a commonly known
transboundary air pollution problem today, were not widely known until the late 1970s.32
Countries have not actively searched for solutions to transboundary environmental problems,
even when they have been aware ofthe problems. Some countries, for example, took the

position that reducing emissions of acid rain precursors was unnecessary until there was
conclusive evidence that acid rain caused environmental damage.33

28 Elizabeth DeSombre, The Experience of the Montreal Protocol: Particularly Remarkable,

and Remarkably Particular, 19 UCLA JOURNAL OF ENVIRONMENTAL LAW AND POLICY 49,
(2000-2002).

29 Ibid.

30 HANDBOOK FOR THE MONTREAL PROTOCOL ON SUBSTANCES THAT DEPLETE THE OZONE
LAYER, (9th Edn. 2012).

31 Supra Note 12.

32 Supra Note 1.

33 Supra Note 4.

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There have been historic obstacles to international cooperation on biosphere protection,

including international dividing lines, internal threats to national sovereignty, and higher
prices for disappearing natural resources.34 The high cost of compliance with multilateral
agreements is also a disincentive for signatories to meet their obligations.35

International agreements to control transboundary air pollution are a fairly recent

phenomenon. The 1979 Convention on Long-Range Transboundary Air Pollution36 was the
first multilateral agreement to specifically address transboundary air pollution problems.37
Typical of multilateral environmental agreements, it is only generally worded,38 with no
requirements to reduce specific pollutants by any fixed time.39 The 1985 Vienna Convention
for the Protection of the Ozone Layer40 was the second multilateral agreement devoted
entirely to air pollution control41 and the first international attempt to limit risk of

34 Frank Biermann, Institutions for Scientific Advice: Global Environmental Assessments

and their Influence in Developing Countries, 8(2) GLOBAL GOVERNANCE 195, (2002).

35 K.J. Beron et al., Why Cooperate? Public Goods, Economic Power, and the Montreal
Protocol, 85(2) THE REVIEW OF ECONOMICS AND STATISTICS 286, (2003).

36 Ibid.

37 Supra Note 8.

38 Anita Halvorssen, Common, but Differentiated Commitments in the Future Climate

Regime, 18 COLORADO JOURNAL OF ENVIRONMENTAL LAW AND POLICY 247, (2007).

39

40 Ibid.

41 Supra Note 11.

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stratospheric ozone depletion.42 Like the 1979 Convention, it contained no specific

mechanisms for controlling emissions of CFCs or other ozone depleters.43

Through the early 1980s, there was no accord reached on defining national responsibilities
for transboundary air pollution control or payment for damages due to adverse impact.44
Aggrieved Western nations had to choose between general international law, domestic suits,
or diplomacy to secure compensation for damages.45

4. EFFECTS ON INDIA'S POLICY ON THE PROTECTION

OF THE OZONE LAYER

Political steps have been taken to address the problem of startospheric ozone depletion. For
instance, the negotiations of the 1985 Vienna Convention for the Protection of the Ozone
Layer, its 1987 Montreal Protocols etc. One of the most important steps in this regard has
been with the North-South relations. In 1990, the London amendment was brought into
force, according to which the industrilized nations promised to reimburse the developing
countries for any addded costs, provided they showed their full support for the environmental
cause.46

There have been several commitees which have been formed to analyse and deter the effects
of the ozone depletion. For instance, one of the single international advisory committee was
Coordinating Committee on the Ozone Layer and several assessment panels under the UN

42 Supra Note 12.

43 Ibid.

44 Elizabeth Barratt-Brown, Building a Monitoring and Compliance Regime Under the

Montreal Protocol, 16 YALE JOURNAL OF INTERNATIONAL LAW 519, (1991).

45 Olaf Morgenstern et al., The World Avoided by the Montreal Protocol, 35 GEOPHYSICAL
RESEARCH LETTERS LI68II, (2008).

46 See Benedick, Ozone Diplomacy, p. 101

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Environment Programme (UNEP), which serves as the secretariat of the ozone treaties.47What
is interesting is the fact that these committees have been interlinked in their working and
purpose. Further, the relevant question at hand is with regard to the influence these
committees have had on the decision making process in India. This is important because of
the participation in these committees largely belonging to the North.48 This is analyzed after a
brief description of the policy development within the Indian government.

4.1 APPROPRIATE POLICY DEVELOPMENT

India was not very sincere in committing to the depeletion of the ozone issue. Regular
excuses in line with the unavalablity of resources and conservatism of society. The approah
taken by the Indian governement was similar to those adopted by the Chinese government
and other developing countries. India did not participate in the 1985 Vienna conference, when
the framework treaty was signed, and sent only observers but no formal delegation to the
1987 Montreal meeting.

The reason for such a careless stance was the belief that only industrialzed countries faced
ozone depletion and hence India had nothing to worry about. Further, the government
believed that there were more pressing issues. The general stance was that it was a problem
of the rich to be solved by the rich.49 Further, the use of chlorofluorocarbon (CFC) use in
India was high. The country had, in 1987, the second highest expected growth in CFC use in
the developing world. A study estimated that from 1980 to 2000, India's production of
household refrigerators would rise by 102 to 313 percent, of air conditioning systems by 94 to

47 Daniel F. Kohler, John Haaga, and Frank Camm, Projections of Consumption of Products
Using Chlorofluorocarbons in Developing Countries (1987).

48See Marc Williams, "Re-articulating the Third World Coalition: The Role of the
Environmental Agenda," THIRD WORLD QUARTERLY 14, no. 1 (1993): 7-29, at p.22

49 Details in Government of India, Ministry of Environment and Forests, Annual Report

1997-1998, p. 139; see Government of India, Ministry of Environment and Forests, New
Initiatives, New Programmes, pp. 48-50; Kalipada Chatterjee, "Climate Change and Ozone
Layer Protocols (Part I), Development Alternatives 9, no.2 (February 1999) 5-7.

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334 percent, and of propulsion gases by 218 to 266 percent.50 Therefore for a developing
country, it would be more appropriate to focus on other relevant issues.

Article 4 of the Montreal Protocol, sought to discourage the non members and hence held that
there would be several trade restrictions against the non members. However, in an attempt to
bribe the developed countries, India eannounced CFCs would be provided to other cpuntries
if they needed them.51

However, owing to several disadvantages of not joining the convention, India, after the 1990
London amendment, became a party to the Vienna Convention and Montreal Protocol. There
was a grace period of 10 years that was given to the developing countries, to abide by the
rules. This is why even though India increased its CFC consumption, there was no problem
India has extended its CFC consumption over the years, there has been no particular problem.
However, It is important to acknowledge that India is on the path to CFC conversions as it
can be seen from the fact that more than half of the 1996 CFC consumption is now reduced.52

However, India still maintains the position that ozone depletion is a problem which is caused
by industrilized nations and hence it must be dealt with by them. This is why in its recent
environmental program, protection of the ozone layer is dealt with only in "International
Cooperation," and not as part of the national program on activities such as pollution control
or the preservation of natural resources.53

50 See Government of India, Ministry of Environment and Forests, Annual Report 1997-
1998.

51 Supra Note 2.

52 Ibid.

53 Supra Note 2.

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4.2 THE ROAD AHEAD

For there to be any real progress in combating the ozone depletion, there needs to be constant
monitoring of the CFC Levels and other relevant indicators. A change in the mindset of the
policymakers and the stakeholders is the most needed step. As it is often said, acknowledging
the problem is the very first and significant step towards solving the same. A few notable
challenges that require immediate attention are as follows.

Provide financial assistance to the small and medium sector so that there is no
improper usage of the CFC in refrigerator and air conditioner production.
Regulate the use of/ slowly abolish the use of CFC in the solvent sector
Illegal trade of CFCs must be monitored.
Education regarding the depletion of the ozone layer, the various causes and effects
must be mandatorily preached to those in industries.
The state should start to acknowledge the problem and form various committes to
phase the ODS out.

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1989

5. CONCLUSION

The Montreal Protocol is significant as it has brought together a lot of the countries to an
agreement that industrial activity needs to be regulated in orer to bring about a reduction in
the ozone depletion. It shows the fact that the problem is a colossal one has been
acknowledged by the governement. The agreement motivates the governement to perfrom
better and change the science an the way industry develops and functions. It is innovative and
unique in the sense that it does not compromise on buisness.

Although black market in the ozone dealing substances is a problem, it isnt that significant as
no country is ready to face the consequences of not complying with the treaty. Since the
treaty offers several benefits to the trety abiding countries, it is a source of serious motivation.
For instance, domestic taxes on products that dont deplete the ozone layer have been done
away with in many countries. This has contributed to repairing the ozone layer.

One of the significant issues in the paper is with regard to the unwillingness on part of
developing countries to participate in the protecting the ozone layer. They may demand
several types of assistance and refuse cooperation. In such a scenario, it becomes important to
note that the developed countries are also affected because the cost of protecting the ozone
layer is increased. This might demotivate the developed countries to take any serious action
to protect the environment.

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The Montreal protocal should provide some extra time for the develoing countries and heavy
compensation to the developing cpuntries if they join the fight against ozone depletion. This
mismatch in incentives is particularly worth noting because both the Convention on
Biological Diversity and the Framework Convention on Climate Change combine these two
elements as well.

But the Montreal Protocol process has some peculiarities that make drawing lessons from it
difficult and made it a more likely success than other agreements to address future
environmental problems. The Montreal protocol, although largely a success, Is not
completely successful. This can be attributed to the fact that it only controls susbtances which
are harmful to the environment. There are other factors too, which lead to the depletion of the
ozone layer and this has to be recognized.

In conclusion, the developed countries must take double the effort that the developing
countries too and must acknowledge the problems as they arise. This will increase the
success of the montreal protocol.

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BIBLIOGRAPHY

ARTICLES
1. Dale Bryk, The Montreal Protocol and Recent Developments to Protect the Ozone
Layer, 15 HARVARD ENVIRONMENTAL LAW REVIEW 275, (1991).
2. Elizabeth DeSombre, The Experience of the Montreal Protocol: Particularly
Remarkable, and Remarkably Particular, 19 UCLA JOURNAL OF ENVIRONMENTAL
LAW AND POLICY 49, (2000-2002).
3. Anita Halvorssen, Common, but Differentiated Commitments in the Future Climate
Regime, 18 COLORADO JOURNAL OF ENVIRONMENTAL LAW AND POLICY 247, (2007).
4. Diane Doolittle, Understanding Ozone Depletion: The Meandering Road to the
Montreal Protocol and Beyond, 16 ECOLOGY LAW QUARTER 497, (1989).
5. Elizabeth Barratt-Brown, Building a Monitoring and Compliance Regime Under the
Montreal Protocol, 16 YALE JOURNAL OF INTERNATIONAL LAW 519, (1991).
6. Jason Patlis, The Multilateral Fund of the Montreal Protocol: A Prototype for
financial Mechanisms in Protecting the Global Environment, 25 CORNELL
INTERNATIONAL LAW JOURNAL 181, (1992).
7. Holly Sims, The Stratospheres the Limit: India Addresses the Montreal Protocol,
35(3) ASIAN SURVEY 268, (1995).

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 MONTREAL PROTOCOL ON SUBSTANCES THAT DEPLETE THE OZONE LAYER, 17
1989

8. Jeff Trask, Montreal Protocol Noncompliance Procedure: The Best Approach to

Resolving International Environmental Disputes?, 80 GEORGETOWN LAW JOURNAL
1973, (1991-92).
9. K.J. Beron et al., Why Cooperate? Public Goods, Economic Power, and the Montreal
Protocol, 85(2) THE REVIEW OF ECONOMICS AND STATISTICS 286, (2003).
10. Olaf Morgenstern et al., The World Avoided by the Montreal Protocol, 35
GEOPHYSICAL RESEARCH LETTERS LI68II, (2008).
11. Frank Biermann, Institutions for Scientific Advice: Global Environmental
Assessments and their Influence in Developing Countries, 8(2) GLOBAL GOVERNANCE
195, (2002).
12. Mario Molina et al., Reducing Abrupt Climate Change Risk using the Montreal
Protcol and other Regulatory Actions to Complement cuts in CO2 emissions, 106(49)
PROCEEDINGS OF THE NATIONAL ACADEMY OF SCIENCE 20616, (2009).

BOOKS

1. HANDBOOK FOR THE MONTREAL PROTOCOL ON SUBSTANCES THAT DEPLETE THE

OZONE LAYER, (9th Edn. 2012).

2. Christos Zerefos et al., TWENTY YEARS OF OZONE DECLINE, (2009).

17