The Experience of the Montreal Protocol: Particularly Remarkable, and Remarkably Particular

I. INTRODUCTION By most accounts, the treaty process for addressing ozone depletion is an unqualified success. It has achieved near universal participation, with 170 states party to the Montreal Protocol, and a substantial fraction of those party to the London, Copenhagen, and Montreal Amendments to the Protocol.(1) It has fundamentally changed the way certain industries conduct their business, already creating in some countries a complete phaseout of certain classes of chemicals. The process itself is particularly impressive. Negotiations began under conditions of uncertainty, over both the existence and extent of environmental harm and the costliness of taking action to mitigate it. The Vienna Convention, the Montreal Protocol, and subsequent amendments have created the ability to adapt to changes in scientific understanding of the problem and its potential solutions. The environment is responding as well. Although it is too soon to expect to see improvement in the ozone layer, measurements indicate that it is deteriorating at a decreasing rate, and concentrations of some ozone depleting substances in the atmosphere are starting to decline.(2) Moreover, the process operated under circumstances that made its success seem unlikely. The Montreal Protocol was the first global environmental treaty to address an environmental problem that was still only theoretical. The idea that halogenated compounds could destroy ozone had been demonstrated in the laboratory, and Sherwood Roland and Mario Molina had theorized that human-created chlorofluorocarbons (CFCs) could migrate into the stratosphere where the ozone layer protected the earth from harmful ultraviolet rays. But no one had seen the destruction of the ozone layer by these chemicals and, more importantly, no one had witnessed actual environmental damage resulting from this potential problem. This process addressed a truly precautionary issue in a way that had not previously been attempted on such a large scale. In addition, there was uncertainty about the effects of regulation. Although industries in the United States had undertaken some research on substitute chemicals, no substitution was readily apparent and any were likely to be expensive. Industries were reluctant to agree to restrict the use of an important class of chemicals, and states were reluctant to make them bear such uncertain costs. The ways in which this set of agreements has accomplished its goals are important to examine. The primary one involves the way the possibility for adjustments, of a variety of types, is integrated into the treaty process. The use of a Convention/Protocol structure allowed for official negotiations to begin when there was little consensus over science or the need to act, and create or deepen commitments once information became accepted. In a more radical move, the Protocol process allowed for non-negotiated adjustments to take place that would bind all signatories, thereby skirting some of the major difficulties in changing treaty obligations. Much work is done behind the scenes by Secretariat members or other committees that result in implicit adjustments as well as processes, in ways that smooth over potential problems before they become serious. In short, the treaty process is not rigid, but is constantly adjusting new situations. Although criticized by many for bowing to industry influence, the process has taken care to work within or create incentive structures that encourage industry action to protect the ozone layer. As a result, the change to substitute chemicals or manufacturing processes cost far less than many predicted, and caused less of a disruption in industrial activity than it could have. Finally, the Montreal Protocol process broke new ground in addressing issues relating to developing countries. States that had not been the primary creators of the environmental problem and for whom global atmospheric protection ranked fairly low on any list of concerns, were given special consideration in order to bring them into a system of regulations in which they would eventually need to participate. …

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