INTERNATIONAL ENVIRONMENTAL LAW 1993
STUDENT: DAVID RISSTROM, 9106105
LECTURER: DON GRIEG
Consider the response of International Environmental Law in the regulation of induced change to the ozone layer.
THE RESPONSE OF INTERNATIONAL ENVIRONMENTAL LAW
TO THE POTENTIAL FOR STRATOSPHERIC OZONE DEPLETION
The main international legal problem with the release of ozone depleting substances, as for other forms of
transboundary air pollution, is that their deleterious effects extend beyond the jurisdictional limits of the state
they originated from.1 It is for this reason that the significant legal changes concerning potential depletion of
the ozone layer have arisen primary in international fora.
This essay considers some of the responses of international environmental law to the potential for stratospheric
ozone depletion, particularly the 1985 Vienna Convention for the Protection of the Ozone Layer, and the 1987
Montreal Protocol on Substances that Deplete the Ozone Layer, which have created one of the most elaborate
and sophisticated models of international control and supervision for environmental purposes to date. 2
WHAT HAS GENERATED CONCERN ABOUT THE OZONE LAYER?
Whilst climate is a constantly fluctuating phenomenon, current disputes concerning ozone layer depletion
revolve around potential changes that are of a magnitude and rate that ecological systems may be unwilling or
unable to adapt to. As such, human induced depletion of stratospheric ozone beyond climactic norms is now
considered a proven phenomenon.3
Existing in the upper atmosphere at a concentration of about 1 in 100,000, stratospheric ozone, O 3, is
particularly valuable due to its capacity to absorb ultraviolet radiation before it reaches the Earth’s surface. 4
Evidence emerged during the mid-1970’s, linking the release of chlorofluorocarbons (CFC’s), halons and other
chlorine based substances with the diminution of the stratospheric ozone layer. 5 CFC’s belong to a species of
chemical compound known as the halogenated gases, which over a six to seven year period, tend to percolate
upwards to altitudes between 10 and 50 kilometres. The major halogenated source gases would thus continue
to grow in concentration in the troposphere even if the consumption of these gases stopped today. 6 Details of
the consumption rates for two of the most pernicious chlorofluorocarbons are provided in Table 1.
1
2
3
4
5
6
Vukas, D., ‘Concluding General Observations on General International Law and New Challenges in the Field of
Transboundary Air Pollution’ in Transboundary Air Pollution, 1986 347.
Birnie, P., and Boyle, A., International Law and the Environment, 1992 411.
Background Brief, ‘Saving the Ozone Layer: A Summary of the London Conference’ 1989 2, cited in Tsamenyi, B., and
Bedding, J., ‘The Australian Legislative Framework for the Protection of the Ozone Layer’ in Environmental and
Planning Law Journal, Vol. 7, 1990 3.
Doolittle, D., Underestimating Ozone Depletion: The Meandering Road to the Montreal Protocol and Beyond’ (1989)
16 Ecology Law Quarterly, 408.
Birnie, P., and Boyle, A., Op cit., 1992 388.
International Panel on Climate Change, 1992 The IPCC Supplement, 1992 38.
The Response of International Environmental Law to Potential Ozone Depletion / David Risstrom / Page 1
The Response of International Environmental Law to Potential Ozone Depletion / David Risstrom / Page 2
TABLE 1: CHANGES IN CHLOROFLUOROCARBON CONCENTRATIONS IN THE ATMOSPHERE
Pre-industrial (1750-1800)
Present day (1990)
Current annual rate of change
Atmospheric lifetime (years)
CFC-11
CFC-12
(Parts per trillion by volume)
0
280
9.5 (4%)
65
(Parts per trillion by volume)
0
484
17 (4%)
130
Source: International Panel on Climate Change, 1992, Climate Change 1992, xvi.
The ozone layer is significant for two main reasons. Firstly, a decrease in atmospheric ozone level is likely to
lead to an increase in the risk and extent of UVB radiation damage to life forms on earth, including plants,
animals and humans.7 The direct consequences in increased human cancer rates are significant, in that it is
predicted that for every 1% increase in UVB radiation, in Australia alone, there will be a corresponding
increase of about 2,500 new cases of non-melanocytic cancer per year, which will be associated with an extra 46 deaths per year.8
Secondly, the distribution of ozone at different altitudes may influence the thermal clines and stratospheric
circulation patterns, thus induced changes may have major implications for global climate patterns. 9
DETERMINATIONS RELATING TO AIR POLLUTION IN INTERNATIONAL ENVIRONMENTAL LAW
The Trail Smelter Case, and to a lesser extent, the Nuclear Tests Case, remain the only international adjudication
on the subject of air pollution.10 The Trail Smelter arbitration held that, “No state has the right to use or permit
the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the
properties or persons therein, when the case is of serious consequence and the injury is established by clear and
convincing evidence.”11 This left almost no doubt that states remain responsible in international law for harm
caused due to a breach of obligation by transboundary air pollution. 12
Whilst the 1979 Geneva Convention on Long-Range Transboundary Air Pollution, the only major regional
agreement devoted to regulation and control of transboundary air pollution, suggested that equitable
considerations play an important role in resolving questions concerning the legality of transboundary air
pollution, customary international legal principles and rules principally shaped future’ negotiations. 13
INTERNATIONAL ENVIRONMENTAL LAW’S RESPONSE TO POTENTIAL OZONE DEPLETION
The main focus of international activity relating to protection of the ozone layer has revolved around the
United Nations Environment Program (UNEP), the World Meteorological Organisation (WMO), and the World
Health Organisation (WHO).14 The two main international agreements stemming from this activity are the
7
8
9
10
11
12
13
14
Tsamenyi, B., and Bedding, J., ‘The Australian Legislative Framework for the Protection of the Ozone Layer’ in
Environmental and Planning Law Journal, Vol. 7, 1990 4.
National Health and Medical Research Council, Health Effects of Ozone Layer Depletion: A Report of the National Health
and Medical Research Council Working Party Melbourne 1989, 1989 70.
United Nations Environment Program, The Ozone Layer, 1987 10, cited in Benedick, R., Ozone Diplomacy, 1991 9.
Birnie, P., and Boyle, A., Op cit., 1992 394.
The Trail Smelter Arbitration 3 R. I. A. A. 1941 121.
Birnie, P., and Boyle, A., Op cit., 1992 394.
Birnie, P., and Boyle, A., Op cit., 1992 394.
Tsamenyi, B., and Bedding, J., Op cit., 1990 4.
The Response of International Environmental Law to Potential Ozone Depletion / David Risstrom / Page 3
1985 Vienna Convention for the Protection of the Ozone Layer, and the 1987 Montreal Protocol on Substances
That Deplete the Ozone Layer.
UNEP was active as early as 1975 in efforts to sensitise governments and public opinion towards the potential
dangers from ozone depletion15, by making ozone a priority through funding of the WMO conference on the
implications of existing research. This conference produced the first official statement of international concern
about CFC’s.16 By 1977, UNEP’s Governing Council had established the Co-ordinating Committee on the
Ozone Layer, formin an important information bridge between governments, scientists, industry, universities
and international agencies17, in urging support for a ‘World Plan of Action’ to protect the ozone layer. 18
In 1980, UNEP approved a nonbinding resolution suggesting a reduction in CFC use, but in doing so, did not
set any quantitative targets.19 By 1981, UNEP authorised commencement of work toward negotiation of a
treaty to protect the ozone layer20, though most governments involved perceived the framework convention as
covering only co-operative research agreements, rather than imposing international controls.21
In June 1982, UNEP launched the Ad Hoc Working Group of Legal and Technical Experts for the Preparation
of a Global Framework Convention for the Protection of the Ozone Layer. Canada, Finland, Norway, Sweden
and Switzerland formed the ‘Toronto Group’ in 1983, introducing the idea of reducing CFC emissions. The
USA joined later that year, proposing the development a separate protocol containing international regulations
for adoption simultaneously with the framework convention.22 The Toronto Group proposal was designed to
allow science to provide guidance to policymakers on the extent of additional controls that might prove
necessary.23 Unfortunately, the working Group was unable to agree on a control protocol, signing only a
framework convention, the 1985 Vienna Convention.24
THE 1985 VIENNA CONVENTION FOR THE PROTECTION OF THE OZONE LAYER
Almost three years later, representative of 43 nations convened in Vienna to conclude agreement on the 1985
Vienna Convention for the Protection of the Ozone Layer.25 Signed by twenty nations, the ‘Ozone Convention’
came into force in September 1988. According to the then Executive Director of UNEP, Dr. Tolba, it was first
global convention to “address an issue that for the time being seems far in the future and is of unknown
proportions.”26
15
16
17
18
19
20
21
22
23
24
25
26
Benedick, R., Ozone Diplomacy, 1991 40.
World Meteorological Organisation, 1975, Statement on Modification of the Ozone Layer Due to Human Activities and Some
Possible Geophysical Consequences, Geneva: WMO.
Benedick, R., Op cit., 1991 41.
Barratt-Brown, E., ‘Building a Monitoring and Compliance Regime Under the Montreal Protocol’ in Yale Journal of
International Law, Vol 16, 1991 523.
Benedick, R., Op cit., 1991 41.
Birnie, P., and Boyle, A., Op cit., 1992 404.
Benedick, A., Op cit., 1991 41.
Ibidem., 42.
Ibidem., 43.
Barratt-Brown, E., Op cit., 1991 527.
Benedick, R., Op cit., 1991 44.
Smith, W., ‘Agenda 21: The Role of the United Nations in Setting the Global Environmental Agenda for the Next
Decade’ in Ecopolitics V, 1992 331.
The Response of International Environmental Law to Potential Ozone Depletion / David Risstrom / Page 4
One of the purposes of the convention’s definition was to indicate its concern with stratospheric ozone, rather
than other lower level ozone conglomerations. Referring to Principle 21 of the 1972 Stockholm Declaration,
parties bound themselves to take “appropriate measures …to protect human health and the environment
against adverse effects resulting or likely to result from human activities which modify or are likely to modify
the ozone layer.”27
The Convention defines the ozone layer as the layer of atmospheric ozone above the planetary boundary
layer.28 The ozone layer remains part of the atmosphere, falling into areas of common property, and partly
into are national sovereignty.29 This definition of the ozone layer treats the stratospheric ozone layer as a
global unity, without reference to legal concepts of sovereignty, shared resources, or common property30,
suggesting the emergence of a new status for the ozone layer as part of a common resource or common
interest.31
The Convention is explicitly concerned with the protection of the global environment, saying ‘Adverse effects’
means “changes in the physical environment or biota, including changes in climate, which have significant
deleterious effects on human health or on the composition, resilience and productivity of natural and managed
ecosystems, or on materials useful to mankind.”32
THE IMPLICATIONS OF BOTH DEVELOPING AND DEVELOPED COUNTRIES ‘ CONCERNS
The Ozone Convention highlights the range of factors relevant in securing an equitable balance in interests,
whilst reconciling the economic concerns of developing countries with controls sought by developing states.33
Article 4, Co-operation in the Legal, Scientific and Technical Fields, was seen as insufficiently equitable by a
number of developing countries, including India, China and Brazil, as co-operation in accordance with
domestic requirements and practices effectively left the extent to which this occurred at the discretion of the
developed states.34
Some less developed states feared that some chemical substitutes may either be
unavailable to them, or become prohibitively expensive.35
Another reason for the slow progress in negotiations was the need to ensure global participation. 36 Article 6 of
the Convention allows for regular conferences for the purposes of receiving reports, and for establishing the
27
28
29
30
31
32
33
34
35
36
Benedick, R., Op cit., 1991 219.
1985 Vienna Convention for the Protection of the Ozone Layer.
Ibid.
Birnie, P., and Boyle, A., Op cit., 1992 391.
Ibid.
Article 1(2) 1985 Vienna Convention for the Protection of the Ozone Layer, cited in Appendix A, Benedick, R., Ozone
Diplomacy, 1991 219.
Benedick, R., Op cit., 1991 99.
Birnie, P., and Boyle, A., Op cit., 1992 406.
Ibid.
Ibidem., 392.
The Response of International Environmental Law to Potential Ozone Depletion / David Risstrom / Page 5
necessary programs and policies, in order to adopt new protocols and annexes, as well as amendments to the
convention.37
THE INHERENT WEAKNESS OF THE 1985 OZONE CONVENTION
The only measures the Ozone Convention requires parties to take concern assessment of the causes and effects
of ozone depletion, the transmission of information, and the exchange of information and technology. 38 As
such, is largely an empty framework, requiring further action by the parties who were unable to agree on
proposals for more specific control measures.39
The United States, having earlier acted to limit domestic production and consumption of CFC’s, sought an
international control regime that would not disadvantage their progressive stance 40, whilst some EEC countries
resisted control on the grounds that harmful effects were unproven, and that the risks remained long term and
speculative.41
Significantly however, the Ozone Convention was one of the first treaties to articulate the need or preventative
action in advance of firm proof of actual harm, and as such, is a precursor to the emergence and establishment
of the precautionary principle in the 1987 Montreal Protocol.
THE 1987 MONTREAL PROTOCOL ON SUBSTANCES THAT DEPLETE THE OZONE LAYER
The 1987 Montreal Protocol On Substances That Deplete The Ozone Layer set firm targets of up to 50%
reductions for a range of ozone depleting substances by 1995 42, including CFC-11, 12, 113, 114, 115, and halons
1211, 1301, and 2402.43
Whilst the Montreal Protocol was negotiated under the assumption that serious ozone depletion was decades
away, a 1988 NASA study of ozone trends suggested a hole in the ozone layer the size of the United States had
developed over Antarctica.44
In late 1988, under the auspices of the WMO and the UNEP, an
Intergovernmental Panel on Climate Change (IPCC) was established to examine the potential scope and
implications of climate change, including the potential consequences of a reduction in stratospheric ozone. The
IPCC has produced large quantities of information modelled on probable scenarios incorporating a large
number of variables including population increases, predicted economic growth rates, greenhouse gas and
ozone depleting substance release.
The standards set in the 1987 Protocol were found to be insufficient, and so additional substances were
included in the 1990 London amendments, which came into force in Australia in November 1992. The 1990
amendments dramatically accelerated the phase-out schedules, with a timetable for elimination of some
37
38
39
40
41
42
43
44
Ibidem., 406.
Birnie, P., and Boyle, A., Op cit., 1992 405.
Ibidem., 406.
Ibidem., 404.
Benedick, R., Op cit., 1991 43.
International Panel on Climate Change, Op cit., 1992 38.
Benedick, R., Op cit., 1991 139.
Barratt-Brown, E., Op cit., 1991 528.
The Response of International Environmental Law to Potential Ozone Depletion / David Risstrom / Page 6
prescribed substances being brought forward to the year 2000.45
More substances, including carbon
tetrachloride, methyl chloroform and some fully halogenated CFC’s were added to the prescribed list. 46
Whereas scientific assessments showed that in its original 1987 form the Montreal Protocol would not have
halted an accelerating level of chlorine loading in the stratosphere, the 1990 revisions are predicted to result in
a gradually diminishing level after the year 2000, though it will be at least 2040 before the figure returns to 1985
levels.47
In addition, Article 7 of the Convention was revised, requiring parties to provide statistical
information on production, imports and exports of controlled substances for compliance purposes. 48
Limited allowance were made for increases in production of ozone depleting substances to meet domestic
needs until 2000, and to facilitate industrial rationalisation. Control of both consumption and production was
seen as necessary in order to protect the interests of producers and importers by deterring price inflation or
over production in the interim period until phase-out. The Montreal Protocol sought to deal with the problem
of non-parties by banning trade of controlled substances with these states, and discouraging the export of CFC
production technology.49
One measure of the Montreal Protocol’s success is that whilst it only required 11 ratifications, it had
approximately 50 parties by March 1990, including the USSR, United Kingdom, Germany, United States and
the EEC.50
A group of thirteen industrialised countries including Australia, Austria, Belgium, Canada,
Denmark, Germany, Finland, Lichtenstein, Netherlands, New Zealand, Norway, Sweden and Switzerland,
made a statement during the 1990 London round of negotiations, declaring their firm determination to “take all
appropriate measures to phase out the production and consumption of all fully halogenated
chlorofluorocarbons controlled by the Montreal Protocol … as soon as possible but not later than 1997.” 51
The protocol has generated further support amongst industrialised states, such as in Australia, where the
Government has pledged to secure the phase-out of CFC’s well ahead of the Montreal Protocol requirement,
though problems potentially affecting the protocol’s success, including evidence of a faster than expected rate
of ozone depletion, and of the potential significant contribution made by aircraft exhaust emissions which are
not controlled by the protocol, make this uncertain52
Further changes were added in the 1992 Copenhagen Amendment, which included the phase-out of the
transitional hydrofluorocarbons, and the commissioning of a study to determine the status of methyl bromide.
Addition of new controlled substances were made in accordance with Article 9 of the convention, being
effective only in respect of those parties who ratify or accept them.53
45
46
47
48
49
50
51
52
53
Benedick, R., Op cit., 1991 139.
Ibidem., 190.
Birnie, P., and Boyle, A., Op cit., 1992 411.
Ibidem., 410.
Ibidem., 408.
Ibidem., 410.
Ibid.
Ibidem., 411.
Ibidem., 409.
The Response of International Environmental Law to Potential Ozone Depletion / David Risstrom / Page 7
THE MONTREAL PROTOCOL’S PROVISIONS FOR LESS DEVELOPED COUNTRIES
Due to the likelihood that a blanket rule for all states would disadvantage developing states, the Montreal
Protocol allows for special provisions for their needs. Whilst Article 5 permits delayed compliance with the
Protocol’s requirements54, Article 10 has allowed for the establishment of a fund which encourages states to
convert to alternative substances and technologies, thus facilitating technical co-operation and technology
transfer.55
Furthermore, under the 1990 London Amendment, Article 10A requires, “Each party shall take every
practicable step, consistent with the programs supported by the financial mechanism, to ensure: (a) That the
best available, environmentally safe substitutes and related technologies are expeditiously transferred to
Parties operating under paragraph 1 of Article 5; and (b) That the transfers … occur under fair an most
favourable conditions.”56 Following long negotiations, parties agreed to provide $160 to $240 million to
developing countries to meet their incremental compliance costing until these amendments came into force. 57
Whilst Article 10A does not necessarily tackle the reluctance of chemical companies in the developed world to
transfer technology, nor compel them to do so, developing countries are given the ability to require a meeting
of the parties to deal with this issue with appropriate action. So indirectly, through ozone diplomacy, the
developed countries are likely to encourage transfer of technology where their domestic corporations may be
less motivated to oblige.58
COMPLIANCE AND ENFORCEMENT
Effective operation of the protocol’s compliance procedure is dependent on the reporting of information under
Article 7, which having encountered problems requiring the special attention of a UNEP working group,
remain unresolved.59 Inclusion of formal compliance procedures has emphasised the importance of collective
supervision by the parties, though the protocols relatively weak dispute settlement clause indicates its
secondary role and the continuing opposition of many states to compulsory adjudication. 60
The institutional provisions of the 1987 Protocol are the key to its flexible development and enforcement.
Provided efforts to reach a consensus have been exhausted, the Protocol also allows for the negotiation of a
formal non-compliance procedure in which an implementation committee hears complaints and submissions
from the parties concerned with a view to securing an amicable resolution on the basis of respect of the
protocol.61 Article 11 provides for the optional acceptance of compulsory arbitration or judicial settlement in
the event of a dispute between parties, or alternatively it requires the parties seek to negotiate a solution.
54
55
56
57
58
59
60
61
Tsamenyi, B., and Bedding, J., Op cit., 1990 5.
Birnie, P., and Boyle, A., Op cit., 1992 407.
London Revisions to the Montreal Protocol, cited in Appendix A, Benedick, R., Ozone Diplomacy, 1991 255.
Barratt-Brown, E., Op cit., 1991 535.
Birnie, P., and Boyle, A., Op cit., 1992 408.
Ibidem., 411.
Ibidem., 180.
Ibid.
The Response of International Environmental Law to Potential Ozone Depletion / David Risstrom / Page 8
In order to maintain an equitable balance between developed and developing states these decisions must be
supported by separate majorities of both groups, allowing for further adjustments and reductions in the
production and consumption of controlled substances to be adopted and applied within a six month period. 62
The same rule applies to decisions concerning the financial mechanisms created under Article 5.
THE PROBLEMS OF SCIENTIFIC UNCERTAINTY IN ASSESSING ENVIRONMENTAL CHANGE
Control of transboundary air pollution and ozone depletion imply difficult choices concerning economic and
industrial policy. Attempts to negotiate international controls have made relatively slow progress, with a
frequent policy being to defer action pending clear scientific evidence and proof of harm. This explains the
emphasis of the 1972 Stockholm Conference recommendations on the need for monitoring programs and
increased scientific research.63
One of the significant features of both the Ozone Convention and Montreal Protocol’s was their ability to
implement a precautionary approach to the concept of scientific uncertainty. The complexity of environmental
systems means that a scientific degree of certainty is difficult to achieve, let alone provide evidence for legalbureaucratic change.
The tension between scientifically constructed knowledge and judicial decisions is one of the major issues
international environmental law, more than any other body of law, appears to be accommodating. This may be
because agreement on hard law may require a degree of certainty concerning the precise need for action that
has frequently been difficult to achieve. This means that discretion used in the policy process has a particular
pertinence to issues relevant to international environmental law.64
Therefore, although subsequently
reinforced by a growing body of scientific evidence, use of the precautionary approach evident in the
negotiations for the 1985 Ozone Convention, the 1987 Montreal Protocol and later amendments, has produced
obvious benefits.65
HAS THE MONTREAL PROTOCOL BEEN EFFECTIVE IN LIMITING OZONE LAYER DEPLETION?
The Montreal Protocol is a good example of the effectiveness of international environmental law in dealing
with major environmental concerns. Whether these measures can be construed as a success may largely be a
matter of perspective. For conservationists, given the magnitude of environmental concerns they seek to
address, it clearly illustrates the failings of the present diplomatic system, but for those working within the
field of international relations, it reflects the incredible diversity and strength of multilateral diplomacy. 66
As such, I agree with Anne Gallagher’s sentiment that, “An evaluation of the international response to
destruction of the ozone layer leaves us with cause for both optimism and concern.” 67
62
63
64
65
66
67
Ibidem., 409.
Ibidem., 392.
Ibidem., 17.
Ibidem., 392.
Smith, W., Op cit., 1992 331.
Gallagher, A., Masters Thesis: ‘Towards a New International Law for Protection of the Global Environment - A Legal and Policy
Analysis of Ozone Depletion, 1991 109.
The Response of International Environmental Law to Potential Ozone Depletion / David Risstrom / Page 9
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