38 Montreal Protocol, 1987

Manoj Kumar Sharma

Introduction

The Montreal Protocol on Substances that Deplete the Ozone Layer is a supplementary agreement to Vienna Convention, 1985. The aim of the Protocol is to eliminate and phase out Ozone Depleting Substances (ODS) in a time bound manner since these ODS were damaging the important protection in the form of Ozone layer. The world community became alive to the damage caused by anthropogenic activities to the Ozone layer and adopted Montreal Protocol under the Vienna Convention, 1985. It must be appreciated that at the time when Vienna Convention was signed, there was not much conclusive evidence about the quantum of damage being caused by various ODS which were required to be phased out, however, the world community, applying precautionary principle aimed at eliminating possible ODS while recognizing the needs of developing countries as well.

Learning Outcomes

The aim of the present paper is to discuss the provisions of Montreal Protocol on Substances that deplete the Ozone Layer and to analyse the control measures provided in the Protocol. Further, reader will be apprised about various amendments made to the Protocol and their impact. In addition, the mechanism for implementation of the Protocol, mechanism for dealing with non-compliance and India’s commitments to Montreal Protocol shall also be discussed. For this purpose, the paper will be discussed under the following heads:

• Introductory
• Vienna Convention, 1985
•  Montreal Protocol, 1987 :
  •  Introductory
  •  Control Measures under the Protocol
  •  Other Measures
  • Amendments to the Protocol
  • Non Compliance Mechanism
  • Financial Mechanis
  • Technology Transfer
• Implementation of Montreal Protocol in India

Vienna Convention, 1985

Vienna Convention was the outcome of efforts of twenty countries who were largely responsible for producing Chlorofluorocarbons (CFC). These countries signed a treaty in Vienna which is known as Vienna Convention for the Protection of the Ozone Layer, 1985. Vienna Convention is a framework treaty which sets out the general obligation of the parties. The Convention laid down the general obligations of the parties to cooperate, promote research and exchange information on adverse impact of human activities on the Ozone layer and to take appropriate legal, administrative and policy measures to control, limit and replace the activities which have adverse impact on the ozone layer in accordance with their means and capabilities (Article 2). The Convention called upon the parties to undertake and promote research on the physical and chemical processes which affect the ozone layer and is impact on human health, climate and ecosystems and to discover alternatives to such substances which adversely affect the ozone layer (Article 3). The Convention identified various substances which were likely to have adverse impact on ozone like Carbon substances (CO2, methane, carbon monoxide), Nitrogen substances (Nitrous oxide and Nitrogen oxides), Chlorine substances and Bromine substances. The country parties were recommended to conduct research on these substances to find out the scientific data and to find out their alternatives. However, the Convention did not lay down any mandatory actions to be taken by the parties though it provided for the adoption of Protocols in accordance with scientific discovery of the effects of various substances on the Ozone layer. This provided a framework for negotiating international regulations on ODS.

Vienna Convention entered into force on 22nd September 1988. Vienna Convention is the first international treaty to have achieved universal ratification. It achieved universal ratification in 2009.

Montreal Protocol, 1987

Discovery of abnormally low ozone concentration levels near South Pole in 1985 later termed as Ozone hole led to increased international emphasis on taking concrete measures to control, limit and phase out ODS in a time bound manner. Initially when it was pointed out that this ozone layer is the result of increased level of CFCs in the atmosphere, the CFC industry opposed it on the ground that there is no enough scientific evidence to suggest that the hole is caused by the CFC emissions. Further, it was argued that in the absence of certainty in scientific information, it was not worthwhile to take concrete action as they thought that there was no imminent danger at that point of time. However, further research and the results of such research showed the linkage between depletion of ozone layer and ODS emissions which led to the negotiations for establishing a framework and for creating legally binding responsibilities to identify and phase out ODS in a time bound manner to protect the ozone from further depletion. The negotiations led to the adoption of a Protocol in Montreal on Substances that Deplete the Ozone Layer. The Protocol was agreed in September 1987 by forty six countries and it entered into force on January 1, 1989. Like Vienna Convention, Montreal Protocol also achieved universal ratification in 2009.

Montreal Protocol is based on two important principles of international environmental jurisprudence i.e.

• Precautionary Principle
•  Principle of Common but Differentiated Responsibilities

As stated earlier that at the time when Vienna Convention and Montreal Protocol were adopted, there was lack of scientific certainty and therefore, the reduction of emission of ODS was basically adopted on Precautionary Principle to save the ozone layer from probable effect of emission of ODS. Further, it was recognized that the damage to ozone is the result of emission of ODS particularly by developed countries, therefore, the primary responsibility was theirs to control, limit and phase out ODS. Furthermore, the developing countries also had their right to development and to tap their resources,therefore, greater onus was put on developed countries while recognizing the need of developing countries on the basis of the Principle of Common but Differentiated Responsibilities and Respective Capabilities. Accordingly, special provisions were made for developing countries in the phase out schedules. Developing countries with reference to the Protocol imply a country where consumption of Annex A controlled substances was less than 0.3 kg per capita till 01st January 1999 (Article 5).

Control Measures under the Protocol

As stated earlier, Montreal Protocol laid down legally binding responsibilities for the parties to phase out ODS in a time bound manner. These ODS have been identified from time to time in accordance with new scientific and technological advancements and are included in the list of controlled substances under various provisions of Article 2 by way of amendment to the Protocol. Various controlled substances identified so far and for which phase out schedule has been laid down are CFCs (Chlorofluorocarbons), Halons, Fully Halogenated CFCs, Carbon Tetrachloride, Methyl Chloroform, Hydrochlorofluorocarbons (HCFC), Hydrobromofluorocarbons (HBFC), Methyle Bromide and Bromocholoromethane and HFCs. The time schedule for the phasing out of these ODS is given in the next section after discussion on amendments to Montreal Protocol.

In addition, Protocol has prohibited trade i.e. import or export of controlled substances with non-parties with a view to compel non-parties to join the Protocol and therefore to achieve control over controlled circumstances so as to protect Ozone layer from depletion (Article 4). Protocol further provides that if a party is unable to stop production of a controlled substance even after its best efforts during the time frame provided in the Protocol, in such an eventuality, such party must stop export of used, recycled or reclaimed quantities of such substance except for the purpose of destruction (Article 4A). The parties to the Protocol are obligated to establish a system of licensing of import and export of the controlled substances in a time bound manner (Article 4B).

Special provisions have been incorporated for developing countries based on the Principle of Common but Differentiated Responsibilities and respective capacities. For developing countries, the phase out schedule has been delayed/relaxed keeping in view their development needs. The details of the same are given in the phase out schedule discussed in the table given hereinafter.

Further, the parties have been obligated to report data regarding production, import and export of controlled substances for the base year and subsequently (Article 7). Protocol mandates parties to cooperate in conducting research and development on controlled substances and in creating public awareness and exchange of Information (Article 9). Parties are required to submit a summary of activities every two years. The Protocol obligates parties to cooperate –

• For finding out best technologies for improvement, recovery, recycling or destruction of controlled substances, for reducing their emissions
•  To find out Alternatives to controlled substances
•  To promote public awareness on environmental effects of emissions of controlled substances

Amendments to the Protocol

Mechanism for monitoring and reviewing the implementation of the Protocol and for making adjustments and amendments to the Protocol has been vested in Meeting of Parties (MOP). Parties are required to meet at regular intervals. MOP is required to take decisions regarding reduction/alteration in emission targets and to review the implementation of the Protocol. MOP has in various meetings adopted six amendments to the Montreal Protocol keeping in view scientific and technological advancements. These are discussed hereinafter

London Amendment, 1990

London Amendment was adopted in the Second MOP on 29th June 1990. After entry into force of the Protocol, new ODS were identified who were also contributing to depletion of Ozone layer and need was felt to put them into the list of controlled substances and accordingly, London Amendment added fully halogenated CFCs, Carbon Tetrachloride, and Methyl Chloroform to the list of substances needing to be controlled because of their effect on the ozone layer (Annexes A and B) by inserting

Articles 2C, 2D and 2E. The amendment called for the elimination of the production and consumption of CFCs, Halons, and Carbon Tetrachloride by January 1, 2000 (January 1, 2010 for developing countries) and of Methyl Chloroform by January 1, 2005 (January 1, 2015 for developing countries) and barred trade of controlled substances with non parties. The important contribution of London Amendment was the establishment of Multilateral Fund to help developing countries meet their obligations wherein voluntary contributions from developed countries were mandated.

Copenhagen Amendment, 1992

Copenhagen Amendment was adopted in Fourth MOP on 25th November 1992 and it entered into force on 14th June 1994. The features of Copenhagen amendment were:

• It provided for accelerated phase-out of consumption and production of CFCs (including fully halogenated CFCs), Methyl Chloroform, and Carbon Tetrachloride by January 1, 1996, and of Halons by January 1, 1994.
• HBFCs and Methyl Bromide were also added to the controlled substances list by inserting Articles 2G, 2H
• HCFCs added to the controlled substances list (inserting Article 2F)

Vienna Accord, 1995

MOP in its seventh meeting at Vienna took a decision on 07th December 1995 to phase out consumption of Methyl Bromide in developed country by 2010. It was further decided to make adjustments to the phase out schedule of HCFC. Protocol provides flexibility in the matter of amending the phase out schedule. The amendments have been divided into amendments and adjustments. Those adjustments which are within the existing authority of MOP are not required to be submitted further to the Senate.

Montreal Amendment, 1997

Montreal Amendment was adopted on 17-09-1997 in the 9th MOP. The amendment made the following changes to Montreal Protocol

• Imposed prohibition on trade in Methyl bromide with non parties (Article 4A)
• Required all Parties to institute a system of licensing for the import and export of all new, used, recycled, and reclaimed controlled substances, including methyl bromide (Article 4B)

Beijing Amendment, 1999

On 03-12-1999, Parties to Protocol in 11th MOP adopted Beijing Declaration on Renewed Commitment to the Protection of Ozone Layer. 11th MOP made adjustments and series of amendments to the Protocol. Keeping in view the advancements in science and technology and the new scientific wisdom gained, new ODS were identified and added to the list of controlled substances. The Beijing Amendment entered into force on 25-02-2002. The main features of Beijing Amendment are:

•  Addition of Bromochloromethane to the list of controlled substances (Article 2I)
•  Complete prohibition on trade of HCFCs and Bromochloromethane between Parties to the amendment and non-Parties
•  Annual reporting regarding volume of Methyl Bromide used for quarantine and pre-shipment purposes made mandatory

Kigali Amendment, 2016

Kigali Amendment was adopted in the 28th MOP held at Kigali, Rwanda on 15th October 2016. The Amendment is to enter into force on 01st January 2019. Kigali Amendment has added Hydrofluorocarbons (HFCs) to the list of controlled substances (Article 2j). The parties have agreed to phase out production and consumption of HFCs from 2019 in case of developed countries and from 2024 for developing countries. The amendment mandates phasing out of more than 80% of the consumption of HFCs in a time span of thirty years. Further, the Amendment, requires all HCFC-22 producing facilities to destroy HFC-23, a by-product of HCFC and a super pollutant and a very potent GHG from 2020 to the possible extent. The developed countries have been obligated to provide financial support to developing countries for financing HFC reduction. The phase out schedule of HFCs under Kigali Amendment is given in Table II.

The phasing out of HFCs under Kigali Amendment is likely to contribute towards the goals of Paris Agreement of containing the temperature rise upto 1.5 degree Celsius above pre-industrial levels as it is expected to prevent 105 million tonnes of carbon dioxide equivalent of GHG from entering the atmosphere and it will help to avoid 0.5 degree temperature rise by 2100.

Financial Mechanism – Article 10

Article 10 of the Protocol mandates the establishment of Multilateral Fund for achieving the purposes of the Protocol. The provision for Multilateral Fund was added by London Amendment to the Montreal Protocol. Fund has been constituted to help Developing countries i.e. countries operating under Para 1 of Article 5 to meet their obligations under the Protocol. The corpus of the Fund comes in the shape of donations from developed countries. It is managed by Executive Committee having equal representation of Developed and Developing countries and has its Secretariat at Montreal. Since 1991, out of the MLF, activities including industrial conversion, technical assistance, training and capacity building have been approved worth 3.45 billion US $. Projects approved and supported out of Multilateral Fund are implemented by various implementation agencies of UN i.e. United Nations Environment Programme (UNEP), United Nations Development Programme (UNDP), United Nations Industrial Development Organization (UNIDO) and World Bank.

Technology Transfer – Article 10 A

As discussed earlier, the Protocol is based on CBDR and RC and accordingly, Protocol recognizes that the developing countries will need assistance, financial as well as technical, in phasing out ODS. Therefore, the developed countries owe responsibilities commensurate with their capabilities to ensure that the best available environmentally safe substitutes and related technologies are expeditiously transferred to developing countries i.e. parties operating under paragraph 1 of Article 5 and that these transfers occur under fair and most favourable conditions.

Non Compliance Procedure

Article 8 the Protocol obligated the first MOP to discuss and devise suitable procedure for dealing with non-compliance with the provisions of the Protocol and to cope up with parties, who have failed to comply with the Protocol. Accordingly, the MOP has in its various meetings held from time to time devised and updated the non-compliance procedure as per the obligation imposed under Article 8. The Non-compliance procedure is applicable without prejudice to the settlement of disputes provisions laid down in Vienna Convention. MOP has established an Implementation Committee of 10 parties to be elected by MOP based on equitable geographical distribution. The tenure of the Committee is 2 years. After the expiry of the tenure, party may be elected for one immediate consecutive term. However, thereafter gap of one year is required. Implementation Committee is required to meet atleast twice a year. The main function of this Implementation Committee is to receive non-compliance reports and to investigate and identify the facts regarding the same and make appropriate recommendations to MOP. The main features of Non Compliance Procedure are as under:

•  Any party having reservation about other country’s laxity in implementation of the obligations or non compliance with the obligations under the Protocol can send a communication to the Secretariat. Any submission is required to be substantiated by evidence.
•  The Secretariat is required to send that representation to the party whose non-compliance is at issue within two weeks of the receipt of submission
•  If no reply is received within three months, reminder is to be sent to the party who has not complied with the provisions of the Protocol
•  The party is required to reply along with other information to the Implementation Committee as early as possible but in any case not later than six months
•  If the Secretariat finds that there is non-compliance by a party, it can request for information and if no response is received or if the issue is not resolved, then the Secretariat is required to inform Implementation Committee and to include this fact in its report to the MOP
•  Implementation Committee after considering the information received and the reply shall send a report to MOP including its recommendations, if any. The report shall be sent not later than six weeks before MOP
•  MOP to decide the future course of action to ensure full compliance with the Protocol. MOP may recommend and take various measures including providing assistance to the non-complying party to implement its obligations under the Protocol. The MOP may also issue Caution to the Party and in the worst case, the MOP may order suspension from the Protocol in accordance with the rules of international law.

Implementation of Montreal Protocol in India

India is a developing country but it has made its contribution in acceding to international instruments and in discharging international obligations concerning environment. Regarding ODS, India became party to Vienna Convention on 18th March 1991 and to Montreal Protocol on 19th June 1992. To implement the Protocol Implementation authority has been vested in the Union Ministry of Environment, Forests and Climate Change. The Ministry has established an Empowered Steering Committee Chaired by Secretary, Environment Forests and Climate Change. This apart, Ministry has also established Technology and Finance Standing Committee (TFSC) and the Standing Committee on Monitoring for implementing the objectives and provisions of the Protocol. In addition, Ozone Cell has been constituted. To implement the objectives of Montreal Protocol a detailed Country Plan was prepared in 1993 to phase out ODS in accordance with the requirements of the Protocol. In accordance with the aims and purposes of the Protocol, India has taken the following steps:

•  India has phased out the production and consumption of CFCs, CTC and Halons before 1st January, 2010 (except use of pharmaceutical grade CFCs in manufacturing of Metered Dose Inhalers (MDIs) for Asthma and Chronic Obstructive Pulmonary Diseases.
•  India has Phased-out production and consumption of Methyl Chloroform and Methyl Bromide
•  On the eve of Kigali Amendment, India mandated its chemical industry to collect and destroy HFC-23 with immediate effect. As per the estimates, it is expected to prevent half Billion tonnes of CO2 equivalent emissions in next 15 years (Business Wire, 2016)
•  304 projects have been approved and funded by the Executive Committee of the MLF for Implementation of the Montreal Protocol. A total amount of US $279,342,203 has been approved by the Executive Committee of the MLF to phase-out 58,980 ODP tonne of ODSs (Ozone Cell, 2016). As of 2017, total 379 projects have been approved and funded by the Executive Committee of the MLF for Implementation of the Montreal Protocol and the total assistance as reached US $ 30,43,89,305 (OZONE Cell, 2017)
•  This apart, India has also enacted Ozone Depleting Substances (Regulation and Control) Rules, 2000 Salient features of these rules are:
•  To regulate production, consumption, import and export of ODS – Registration of ODS producers, manufacturers of ODS based products, importers, exporters and stockists has been made compulsory.
•  Monitoring Mechanism has been established in the form of maintenance of records and periodic filing of returns
•  Rules have provided for obtaining compulsory licences for import and export of ODS
•  Rules have prohibited the use of CFCs in manufacturing various products except Metered Dose Inhalers
•  Use of Halons, CTC, methyl chloroform, methyl bromide has been prohibited
•  Import of Air-conditioning and refrigeration equipments and other products using HCFCs has been banned

From the above, it is clear that India has taken steps to reduce emission of ODS controlled substances commensurate with the capabilities of the country keeping in mind the development needs of the country.

Conclusion

From the foregoing discussion, it is safe to conclude that Vienna Convention and Montreal Protocol of Vienna Convention are one of the most successful international treaties which have achieved universal ratification. The success story of the Convention and the Protocol is owing to the application of the Principle of Common but Differentiated Responsibilities wherein the developing countries have been given an extended time frame to phase out ODS and provisions have also been made for financial support and technology transfer. Unlike the more glamorous Paris agreement that will come into force by 2020 and which does not legally bind countries to their promises to cut emissions, the amended Montreal Protocol will bind countries to their HFC reduction schedules from 2019.