Regional Reports: International Report

Mark A. Drumbl
Washington & Lee University
School of Law
Lexington, VA
Drumbl@WLU.edu

International Legal Regulation of the Stratospheric Ozone Layer
The sun emits harmful ultraviolet radiation. The ozone layer shields us from this radiation. As ozone in the upper atmosphere depletes, more ultraviolet radiation reaches the earth. This results in melanoma and non-melanoma skin cancers, eye cataracts, weakened immune systems, reduced plant yields and general ecosystem damage.

Scientists have linked ozone depletion to the presence in the upper atmosphere of a small number of industrial chemicals. These include chlorofluorocarbons (CFCs) (used in refrigerators and air conditioners) and halons (primarily used in fire extinguishers). In response to this global problem, in 1985 nations adopted the Vienna Convention on the Ozone Layer. This is a general framework treaty that commits countries to address the production and consumption of ozone-depleting substances (ODS). These commitments were given teeth in a 1987 Protocol concluded in Montreal under the framework of the Vienna Convention. For developed nations, the Montreal Protocol froze ODS production and consumption and established a series of phase-out timetables. Developing nations are given more time to phase out the production and consumption of ODS. This differential treatment is understandable given that developed nations are responsible for the vast majority of emissions to date. Developed nations now have phased out the use of most CFCs and other ODS. Developing nations now must follow in order for these gains not to be forsaken.

Reduction and phase-out timetables have since been adjusted (in terms of time-periods and also the types of substances covered) in a series of amendments to the Montreal Protocol made in London in 1990, Copenhagen in 1992, Montreal in 1997, and Beijing in 1999. (As of October 2002, 185 countries are parties to the Vienna Convention and 184 countries are parties to the Montreal Protocol. This represents the vast majority of the world’s nations. Parties to the various amendments range from 164 (London Amendments) to 41 (Beijing Amendment).) These amendments reflect the results of periodic scientific and technological assessments. For the most part, these amendments accelerate phase-out timetables and expand the scope of substances to be regulated.

There is evidence that international legal regulation of ODS has had some success. ODS levels in the stratosphere are now at or near their peak. Moreover, the latest scientific research demonstrates that the total amount of ODS in the troposphere (lower atmosphere) continues to decline, albeit slowly. All in all, the ozone layer is beginning to recover. A future Arctic polar ozone hole similar to the one over the Antarctic appears unlikely. However, the ozone layer remains vulnerable. In all cases, these successes assume nations will continue to meet their obligations under the Montreal Protocol and subsequent amendments.

The viability of the ozone regime now depends on developing nation participation. Under the Montreal Protocol, developing nations are committed to reducing their consumption and production of CFCs by 50 percent in 2005 and by 85 percent in 2007. By 2005 they are also obliged to reduce their consumption of halons by 50 percent, methyl bromide (a fumigant) by 20 percent, and the solvents carbon tetrachloride and methylchloroform by 85 percent and 30 percent respectively. Although the majority of developing countries are on track in complying with these phase-out schedules, many lag behind.

A Multilateral Fund – created in 1990 by the London Amendments – already has disbursed $1.3 billion to help developing countries meet their targets. The Fund now is up for recapitalization. This and a number of other issues are one the agenda of the 6th Meeting of the Conference of the Parties to the Vienna Convention (and the 14th Meeting of the Conference of the Parties to the Montreal Protocol), held from Nov. 24 to 29, 2002, in Rome.

For now, though, it appears that the Montreal Protocol is protecting the ozone layer. One reason why the Montreal Protocol has been effective involves the quick development of ozone-friendly substitutes to ODS. Research initially identified substitutes; the rapid development of these ideas then permitted a group of chemical corporations to introduce them onto the market. This created a commonly shared political will to phase-out ODS. This evidences the fairly unsurprising proposition that cooperation among regulators, scientists, and market players can mitigate environmental harm when such mitigation is in everyone’s immediate best interest.

However, there is a further complicating factor: the connection between the regulation of ODS and climate change. The ozone-depletion and the greenhouse-warming phenomena share many common physical processes. As the concentration of CFCs declines, their greenhouse-warming contributions will decline. On the other hand, use of hydrofluorocarbons (HFCs) and hydrochlorofluorocarbons (HCFCs) as ozone-friendly substitutes for CFCs may well contribute to global warming. Accordingly, it may be best for the international community to develop common – or at least linked – responses to ozone depletion and climate change.