Comparing the Ozone Layer Regime with the Climate Change Regime: No Single Solution – No Single Comparison

Overview

Over the last thirty years, climate change and the depletion of the ozone layer have been widely believed to be the world’s largest environmental challenges.[1] Although both problems have many similarities, constituting the two principal threats to the global atmosphere, the effectiveness of the regimes that were established to address them varies significantly. While the ozone layer regime has largely served to eliminate the production and use of ozone-depleting substances, the climate change regime has spurred only modest steps towards stabilizing greenhouse gas (GHG) emissions. These discrepancies in the outcomes of the two regimes have given rise to outright and unqualified characterizations of “success” for the ozone layer regime and “failure” for the climate change regime. However, the definition of “success” or “failure” under international environmental law is open-ended, hard to measure and is not exclusively outcome focused.

The Ozone Layer Regime

The ozone layer regime comprises the 1985 Vienna Convention for the protection of the ozone layer (1985 Vienna Convention)[2] and the 1987 Montreal Protocol on substances that deplete the ozone layer (1987 Montreal Protocol)[3]. The 1985 Vienna Convention, following the pattern of the 1979 Geneva Convention on Long-range Transboundary Air Pollution (1979 LRTAP)[4], sets a framework that requires further action. This action has taken the form of the 1987 Montreal Protocol, a landmark international environmental agreement that sets forth firm and precise obligations for reducing and eliminating the production and consumption of a range of ozone-depleting substances. Contrary to popular belief, the Protocol was negotiated and concluded in an environment of scientific uncertainty about the causes of ozone depletion. According to Sands, “the absence of scientific evidence that actual harm was occurring required the international community to take precautionary measures to control equitably total global emissions’ of substances that deplete the ozone layer”.[5] As Benedick has pointed out, the Protocol was based “not on measurable evidence of ozone depletion, but rather on scientific hypothesis, requiring an unprecedented amount of foresight”.[6] In order to address this state of scientific uncertainty and be able to respond to improvements in the scientific understanding of the ozone layer depletion, the Protocol has adopted a flexible and dynamic design, which constitutes one of its most important qualities. The establishment of assessment panels – operating on a voluntary basis with the participation of industry, governments and academia – has given Parties access to the best available information on which to make decisions. This has improved their ability to address threats to the ozone layer promptly, even pre-emptively, by adding new chemicals when their risks are scientifically identified, as well as putting controls on ones that had never existed before. Moreover, the Protocol provides an innovative – but controversial for the time of its adoption – incentive for states to become party to it by allowing trade in controlled substances with states which are not parties to the Protocol.[7] Given its high level of compliance, the Protocol has lead to a gradually diminishing level of ozone-depleting substances and it is predicted that ozone losses should have recovered by around 2050.[8] As a result, the ozone layer regime represents a leading example of international regulation providing a basis for real solutions to environmental problems.

The Climate Change Regime

However, “solutions to global climate change have not been so easily forthcoming. In principle, the same legal tools could be used successfully to regulate greenhouse gas emissions and construct an international regime for tackling climate change, but with its causes and effects more deeply embedded, the intimate connection with economic growth has made progress in this area hard to achieve”.[9] The 1992 UN Framework Convention on Climate Change (1992 UNFCCC)[10] reflects a compromise between those states that were seeking specific targets and timetables for emission reductions and those which wanted only a “bare-bones” skeleton treaty which could serve as the basis for future protocols, like the 1985 Vienna Convention.[11] The 1992 UNFCCC is uniquely wide in scope, as it is difficult to identify any type of human activity which will over time fall outside its scope. It purports to provide a comprehensive approach to integrating environmental considerations into economic development and aims not to reverse greenhouse gas emissions, but to stabilize them “at a level that would prevent dangerous anthropogenic interference with the climate system”.[12] Implicit in that is that some degree of climate change is inevitable. However, the core provisions referring to the specific commitments under the Convention are unclear in their scope. According to Sands, art.4.2.a and b establish “soft targets and timetables with many loopholes”,[13] as their convoluted language fails short of reflecting a clear commitment to stabilize greenhouse gas emissions. The inadequacy of these provisions was criticized by Bodansky who pointed out that the Convention provides “only the vaguest of commitments regarding stabilization and no commitment at all on reductions”.[14] This weakness was also acknowledged in 1995 at the COP in Berlin which provided a strong mandate (commonly known as the Berlin Mandate)[15] for negotiating new and more rigorous obligations. The 1997 Kyoto Protocol[16] was enacted in order to address these inadequacies and not to introduce new commitments. Given the economic and developmental implications of climate change and the division between states, the Kyoto Protocol negotiations were among the most difficult and complex ever conducted for a MEA. Nevertheless, it created a commitment period of 2008-2012 and for the first time it set quantitative restrictions on emissions establishing three flexibility mechanisms – 1. the Clean Development Mechanism[17] 2. Joint Implementation[18] and 3. Emissions Trading[19] – by which parties may achieve their emission reductions. However, as it has been pointed out, the emission reductions required by the Kyoto Protocol were “overwhelmingly inadequate”[20] to address the challenges of climate change which seems to be far from being resolved.

Criteria and Factors that make the Comparison Inapt

a) The Three Step Test: Compliance, Effectiveness and Success

Clearly, the outcomes of the 1992 UNFCC and the 1997 Kyoto Protocol are not satisfactory, especially when compared to ozone layer regime. But the question that inevitably arises is how can the “success” of a treaty be defined and subsequently measured. Arguably, compliance with a treaty will lead to its effectiveness and success. However, this widely accepted assumption is not accurate.[21] Although compliance with an international agreement might be the first step towards its effectiveness, the latter referring to the extent to which the specified objectives of a treaty are achieved, this is not always correct. Moreover, whether a treaty is “successful” in addressing the problems that led to its conclusion, is a separate question.

b) Causation or Simply Correlation?

There is also the issue of causation and correlation. It must be examined whether a particular outcome is caused by or simply correlated to the implementation of a treaty. With regard to the 1987 Montreal Protocol, the recovery of the ozone layer may correlate to the implementation of the Protocol, but might not necessarily be caused by it.[22]

c) Time Interval between the Drafting of a Treaty and its Actual Operation

Moreover, another factor that must be taken into account is that there might exist a gap between the period when a treaty is drafted and adopted and when it actually becomes operative. Unlike the 1987 Montreal Protocol which was drafted and became operative in a short period of time, the 1997 Kyoto Protocol was drafted in the mid 90s, but entered into force only in 2005. In a period of 10 years, science is likely to have changed considerably and so the implementation of measures that were perceived in the 90s to be effective may be inadequate or even inappropriate to solve the problem which would have evolved over the years.

This issue raises the question about the form that a treaty should take in order to be effective. A flexible paradigm is offered by the International Tropical Timber Agreement which renews itself every six or seven years by creating a new agreement that reflects the most recent state of scientific knowledge.[23] However, this solution bears a high cost as negotiations are ongoing and does not provide a high degree of legal certainty. Another possible model would be the establishment of a Framework treaty with either bilateral agreements as is the case with the 1979 Convention on the Conservation of Migratory Species of Wild Animals[24] or with subsequent protocols as is the case the 1979 Long-range Transboundary Air Pollution Convention. However, the latter option does not guarantee that the protocols would receive equal support.

Moreover, the time interval between the drafting of a treaty and its actual operation is also crucial, especially when the treaty incorporates notions such the principle of common but differentiated responsibility that reflects the state of socio-economic and technological development of countries at a given time. The 1997 Kyoto Protocol, encapsulating this notion,[25] addresses most of its commitments to developed countries. However, countries such as India, Brazil and China which are largely unconstrained by the climate change regime have expanded economically since the mid 90s and have become major GHG emitters. As a result, it remains questionable whether the articulation of the principle of common but differentiated responsibility under the Kyoto Protocol, which reflects the state of development of these countries during the mid 90s, is sustainable, as it undermines significantly its effectiveness.

d) The Problem of Legal Drafting: the Convention on Biological Diversity Revisited?[26]

Moreover, the effectiveness of an agreement also depends on its content. A poorly drafted agreement is not likely to achieve its objectives even if fully implemented. Art.4 of the UNFCCC, a key provision referring to the special commitments of the Convention provides such an example. In particular, the convoluted language of art.4.2 a and b is exacerbated by the provisions of art.4.8 and 4.9 stating that in implementing art.4, the parties must give full consideration to measures necessary to do so.[27] Such circular provisions arguably subtract from the effectiveness of a treaty.

e) Different Issue-Interlinkages at stake

Apart from these considerations which determine the effectiveness and success of each regime separately, it must be noted that a comparison between the two regimes is inapt given their differences. The negotiation of a climate change Convention proved to be a much more difficult task than reaching agreement on protection of the ozone layer and the compromises that had to be reached were reflected in the unclear language of its provisions. “The range and complexity of issues involved in containing global warming and the uncertainty regarding the nature, severity and timescale of possible climatic effects make the task of phasing out the production and consumption of ozone-depleting substances seem relatively simple by comparison”.[28] Moreover, unlike the ozone layer, the economic implications of climate change are much greater, suggesting that the sectoral approach that has traditionally dominated international regulation of the environment is plainly inappropriate to the interconnected and global character of climate change.

Concluding remarks

Overall, it seems that the ozone layer and climate change regimes are by no means comparable and hence it does not appear suitable to speak about the “success” of the former and the “failure” of the latter. The ozone layer regime worked primarily because it had to address a single issue; the elimination of the production and use of ozone-depleting substances. On the contrary, there is still no single solution to address the massively complex issue of climate change. Catherine Redgwell has proposed that other regimes like that of biodiversity could deal with climate change.[29] Presumably a range of instruments and mechanisms will be required at a range of levels – national, regional and international. Tackling climate change is not a purely legal issue, but also political and economic. Hence, to expect that a single legal instrument will resolve this challenge appears to be wrongly based. Law is not the solution to climate change or at least the only solution to it.

ENDNOTES

1. With regard to climate change, UN General Assembly Resolutions 43/53 and 44/207, as well as the preamble of the 1992 UN Framework Convention on Climate Change (UNFCCC) recognize that “climate change is a common concern of mankind”, whereas the 1985 Vienna Convention for the protection of the ozone layer and the 1997 Montreal Protocol acknowledge the adverse effects on human health and the environment through the modification of the ozone layer.
2. Vienna, 22 March 1985, V1513 UNTS 323; 26 ILM 1529 (1987). As of 15 February 2014, 197 states are parties to the Convention.
3. Montreal, 16 September 1987; 1522 UNTS 3; 26 ILM 1550 (1987). As of 15 February 2014, 197 states are parties to the Protocol.
4. Geneva, 13 November 1979; 1302 UNTS 217; 18 ILM 1442 (1979). As of 15 February 2014, 50 states and the European Union are parties to the Convention.
5. P. Sands, Principles of International Environmental Law, 3rd edition, Cambridge University Press, p. 265.
6. R.E. Benedick, Ozone Diplomacy, Harvard University Press, 1998, Ch.1.
7. Art.4 of the 1987Montreal Protocol.
8. WMO, Scientific Assessment of Ozone Depletion: 2010, Global Ozone Research and Monitoring Project, Report No.52 (2011). The Assessment for 2014 is expected to be published in early 2015.
9. P. Birnie, A. Boyle, C. Redgwell, International Law and the Environment, 3rd edition, Oxford University Press, p.335.
10. New York, 9 May 1992; 1771 UNTS 107; 31 ILM 849 (1992). As of 15 February 2014, 194 states and the European Union are parties to the Convention.
11. Supra, note 5, p.276.
12. Art.2 UNFCCC.
13. Supra, note 5, p.280. The underlying compromise of the 1992 UNFCCC is clearly reflected in wording and even the length of articles 4.2 a and b which provide as follows:
    (a) Each of these Parties shall adopt national policies and take corresponding measures on the mitigation of climate change, by limiting its anthropogenic emissions of greenhouse gases and protecting and enhancing its greenhouse gas sinks and reservoirs. These policies and measures will demonstrate that developed countries are taking the lead in modifying longer-term trends in anthropogenic emissions consistent with the objective of the Convention, recognizing that the return by the end of the present decade to earlier levels of anthropogenic emissions of carbon dioxide and other greenhouse gases not controlled by the Montreal Protocol would contribute to such modification, and taking into account the differences in these Parties’ starting points and approaches, economic structures and resource bases, the need to maintain strong and sustainable economic growth, available technologies and other individual circumstances, as well as the need for equitable and appropriate contributions by each of these Parties to the global effort regarding that objective. These Parties may implement such policies and measures jointly with other Parties and may assist other Parties in contributing to the achievement of the objective of the Convention and, in particular, that of this subparagraph;
    (b) In order to promote progress to this end, each of these Parties shall communicate, within six months of the entry into force of the Convention for it and periodically thereafter, and in accordance with Article 12, detailed information on its policies and measures referred to in subparagraph (a) above, as well as on its resulting projected anthropogenic emissions by sources and removals by sinks of greenhouse gases not controlled by the Montreal Protocol for the period referred to in subparagraph (a), with the aim of returning individually or jointly to their 1990 levels these anthropogenic emissions of carbon dioxide and other greenhouse gases not controlled by the Montreal Protocol. This information will be reviewed by the Conference of the Parties, at its first session and periodically thereafter, in accordance with Article 7.
14. D. Bodansky, The United Nations Framework Convention on Climate Change: A Commentary, Yale Journal of International Law 18 (2), 1993, 451–558.
15. Decision 1/CP.1, The Berlin Mandate: Review of the adequacy of Article 4, paragraph 2(a) and (b), of the Convention ,including proposals related to a protocol and decisions on follow-up, in the “Report of the Conference of the Parties on its First Session”, Berlin, 28 March-7 April 1995.
16. Kyoto, 10 December 1997; UN Doc FCCC/CP/1997/7/Add.1; 37 ILM 22 (1998). As of 15 February 2014, 191 states and the European Union are parties to the Protocol.
17. Article 12 of the Kyoto Protocol.
18. Article 6 of the Kyoto Protocol.
19. Article 17 of the Kyoto Protocol.
20. Supra, note 9, p. 371.
21. United Nations Environment Programme [UNEP], Governing Council, Compliance with and Enforcement of Multilateral Environmental Agreements, U.N. Doc.  UNEP/GC/24/lNF/23 (Dec.29, 2007).
22. For instance, technological developments in the production of new refrigerators have also played a role concerning the recovery of the ozone layer.
23. Doc.TD/TIMBER.3/12.
24. Bonn, 23 June 1979; 1651 UNTS 333, 19 ILM 15 (1980). As of 15 February 2014, 119 states are parties to the Convention.
25. Art.10 of the Kyoto Protocol.
26. The poor drafting of the 1992 Convention on Biological Diversity was a major deficiency that undermined significantly its effectiveness and success.
27. Art.4.8 provides: “In the implementation of the commitments in this Article, the Parties shall give full consideration to what actions are necessary under the Convention…”.
28. Supra, note 9, p.356
29. C. Redgwell, Climate Change and International Environmental Law, in “International Law in the Era of Climate Change”, R. Rayfuse, S. Scott (ed.), Edwar Elgar Publishing, 2012, p.118-146.