The Montreal Protocol: The Control Measures

In one line

MU has asked for the salient features of the Montreal Protocol on three of her seven printed papers, more often than for any other instrument, and its salient feature is a phase-out schedule with a trade ban behind it.

In exam wording: the Montreal Protocol on Substances that Deplete the Ozone Layer was adopted on 16 September 1987 and entered into force on 1 January 1989; article 2 and articles 2A to 2J impose control measures requiring each Party to limit and then eliminate its calculated levels of production and consumption of the controlled substances listed in the Annexes; article 3 prescribes how those calculated levels are determined; and article 4 controls trade with States not party to the Protocol.

Article 3: the calculated levels

Take this first, because articles 2 and 4 are unintelligible without it.

For the purposes of articles 2, 2A to 2J and 4, each Party shall, for each group of substances in Annex A, Annex B, Annex C, Annex E or Annex F, determine its calculated levels of:

• production, by multiplying its annual production of each controlled substance by the ozone-depleting potential specified for it, and adding the results for the group;
• imports and exports, respectively, in the same manner; and
• consumption, by adding its calculated levels of production and imports and subtracting its calculated level of exports.

Three consequences follow, and they are the design of the whole Protocol.

One: the unit is damage, not tonnage. A tonne of a substance with an ozone-depleting potential of ten counts as ten. So a Party may substitute a less damaging substance for a more damaging one and its calculated level falls without any reduction in tonnage. That is a regulatory incentive built into the arithmetic.

Two: consumption is production plus imports minus exports. It is not what is used domestically; it is what is supplied to the domestic market. That definition can be applied at a customs post, which is what makes the Protocol enforceable.

Three: the schedule can be tightened by adjusting the numbers. Article 2, paragraph 9, allows the Parties to adjust the ozone-depleting potentials and the reduction schedules by a decision that binds all Parties, without the ratification an amendment would need. That is why the phase-out accelerated repeatedly through the 1990s.

Article 2: the control measures

Paragraph 1 onwards originally set the schedule for the Annex A substances and has been superseded in substance by articles 2A to 2J, which set the schedule group by group as substances were added.

The general provisions in article 2 that survive are the important ones for an examination.

Paragraph 5: industrial rationalisation. Any Party may, for one or more control periods, transfer to another Party any portion of its calculated level of production, provided that the total combined calculated levels of production of the Parties concerned do not exceed the production limits, and that each notifies the secretariat of the terms of the transfer and the period for which it applies.