When A Treaty Works — The Montreal Protocol Turns 20

This Sunday, September 16, the Montreal Protocol on Substances that Deplete the Ozone Layer will celebrate the twentieth anniversary of its conclusion. The Protocol has aged well, frequently celebrated as the most successful international environmental treaty. It has effectively phased out or controlled the production and consumption of most ozone depleting substances that threaten the ozone layer. In the process, scientists have estimated millions of human lives have been or will be saved from skin cancer and its potentially deadly consequences (not to mention avoiding severe degredation of fisheries, flora and fauna via harmful UV rays that the ozone layer mitigates here on earth). The states parties to the treaty are planning a day of celebration to mark the occasion as well as the commencement of the 19th Meeting of the Parties.

And there is something to celebrate here. In terms of combating the problem itself, Montreal has worked out well so far. Although the ozone hole is now as large as it’s ever been, scientists estimate that over the next 50-75 years, the ozone layer will return to earlier levels. Moreover, the Montreal Protocol’s legal framework offers a model for interstate cooperation in responding to global environmental problems. The treaty has proved more than capable in allowing states to adjust their commitments in light of changes to scientific knowledge. High on the agenda this week, for example, will be consideration of whether to accelerate the existing phase out schedule for the production of HCFCs (the substitute chemical adopted in phasing out the original “bad boy” of ozone depletion – CFCs). Doing so would speed the ozone layer’s recovery and reduce greenhouse gas emissions that effect climate change. Of course, some key problems remain – notably, U.S. resistance to phasing out methyl bromide, a pesticide for which many U.S. strawberry and tomato growers say there is no substitute.

Beyond celebration however, we should use the anniversary as an opportunity to consider what the Montreal Protocol can still accomplish. Obviously, it needs to finish the job that has seen so much progress over the last twenty years, making sure the Protocol’s initial successes in reducing the production and consumption of ozone depleting substances hold, and ensuring new threats to the ozone layer are avoided. But the Protocol’s accomplishments need not be limited to the ozone layer. As I’ve noted previously, the Protocol can contribute directly to the reduction of greenhouse gas emissions through efforts such as the accelerated HCFC phase-out. More indirectly, the Protocol may also offer lessons to states as they consider what to do after the Kyoto Protocol reaches the end of its run in 2012. The structure of the Montreal Protocol (e.g., giving developing countries more time to meet the treaty’s requirements; robustly financing developing country efforts to devise substitutes to ozone depleting substances) provide tools that states could use if they opt to depart from the current Kyoto framework (e.g., leaving developing states with no greenhouse gas reduction obligations at all, more limited financing mechanisms).

Finally, I wonder if we can’t use the narrative of the Montreal Protocol’s success in ways that will inform the current debates over climate change. After all, when scientists at the University of Michigan and Berkeley first issued warnings about the effects of CFCs on the ozone layer in the early 1970s, it took some time for the scientific community (let alone states and their governments) to reach a consensus on the problem. Nor did states alone set the agenda for responding to the threat, grass roots movements pushed for boycotts of CFC-containing products, like hairspray, in ways analogous to current calls for individuals to reduce their carbon footprints. And industry had a role to play, with Dupont signaling it was prepared to work on substitutes for the CFCs given the right regulatory incentives, which seems not too distant from increasing evidence that industries are taking greenhouse gas emissions seriously and modifying their business plans accordingly. Such comparisons aren’t perfect and they won’t necessarily require a particular resolution of the climate change problem, but they may serve to remind states, scientists and international lawyers, that, broadly speaking, we’ve been down this road before, and, even if it was a bumpy ride, seem to be coming out OK on the other end.