A Treaty Analysis: History, Theory, and Language

External Links:

TABLE OF CONTENTS:
1.    History of the Treaty (by Eduardo Aguilar)
II.    The Operative Theory of the Treaty (by Sophia Andritsakis)
III.   Detailed Analysis of Treaty Text
IV.   Endnotes

PART I: HISTORY OF THE TREATY

            The issue of the protection of the ozone layer received its first real shove into the spotlight in 1985 through the Vienna Convention for the Protection of the Ozone Layer.  Steps have been taken to protect the health of the Earth’s ozone layer not only by this conference but also through a number of conferences that have been held to amend or add to the efficacy of the original treaty.  Among these subsequent conferences, the most important is the 1987 Montreal Protocol.  Though evolution of this treaty has provided for new ways to combat the issue of ozone depletion, its effectiveness is still limited because of the willingness of signatory states to fully comply with the terms of the treaty.
            In1985, the international community joined forces under the Vienna Convention for the Protection of the Ozone Layer, marking the first time in history that countries from around the world had come together in an effort to address an environmental problem that would, in the long-run, have global consequences.[1]  This conference was attended by 43 states (which included 14 developing countries) and seven international organizations.[2]  The purpose of the convention was to address the urgent need for a protocol on the control of chlorofluorocarbons, which when released into the atmosphere provide for much of the depletion of the ozone layer.  
          Much of the evidence that was presented in defense of the need for the regulation of chlorine-containing chemicals was based on a report presented by the United States National Aeronautics and Space Administration which contained an assessment of the research conducted by several bodies, including UNEP and WMO.  This report contained more refined data on the atmosphere than ever before, and brought into perspective the risk of significant ozone depletion if the release of chlorine-containing chemicals into the atmosphere is not significantly reduced.  This report also presented the possibility of climate change do to the increasing levels of tropospheric ozone along with the greenhouse gas properties of ozone-modifying substances.[3]
          At the 1985 conference, out of 43 states that attended 25 signed the treaty, and it became active on December 31^st 1985, after the guideline that provided for its activation had been met which required for it to be ratified by 20 states.[4]  (For a list of the signatories parties click here[5], as well as for those of the subsequent protocols and amendments).
          Since its induction into international law the treaty itself has undergone various amendments the most important of these is the Montreal Protocol (1987).  This protocol augmented the 1985 convention by adding halons (compounds that deplete the stratospheric ozone layer) to the controlled substances that fell under the jurisdiction of the 1985 Vienna Convention.[6]  This protocol also called for a 50% reduction of in the production and consumption of chlorofluorocarbons by the mid 1988.  It did provide for the complete freeze in production of halos in 1992, which required their production to be frozen at 1986 levels. 

PART II: THE OPERATIVE THEORY OF THE TREATY

          The Montreal Protocol on Substances that Deplete the Ozone Layer is a milestone in International Law designed to protect the stratospheric ozone layer.  The treaty aims at reducing and eventually eliminating CFCs in the stratosphere by halting the production of Ozone Depleting Substances, and phasing out their use over a designated period of time. [7] Drafting a protocol to achieve these goals was a complicated matter because of the special needs of many countries, particularly developing countries who did not want the Protocol to hinder their development.  To provide flexibility and incentives to join as a Party to the treaty out different  requirements were laid out for industrialized and developing countries.  A multilateral Fund was created to ensure that the developing countries could meet the requirements of the protocol

          In addition to set phase out periods for Ozone Depleting Substances the protocol laid out tough trade measures regarding the exports and imports of controlled substances.[8].  Parties to the Protocol cannot import controlled substances from non-parties; in addition, the protocol banned the imports of products produced with controlled substances.[9]  Concerning exports, parties must cban the export of controlled substances to non-parties with the exception of countries meeting the Protocol’s reduction Schedules.[10]  These trade restrictions were designed to prevent countries from not complying with the Protocol in order to free ride instead.

          The Montreal Protocol is supposed to help the ozone layer stabilize by 2050 if all the countries are in full compliance with the reduction schedules for ODSs.  Currently the depletion rates continue to rise because of all of the ODSs that are stuck in the atmosphere.  Although, many scientists believe that ozone depletion is close to stabilizing, depletion rates have not lowered.[11]  The Montreal Protocol is still seen as a success for International Law, since its ratification production and consumption of CFCs has been reduced by 86%.[12]

          The Montreal Protocol operates directly in order to meet its goals of reduction.  The Protocol lays out specific guidelines that must be met in order to be party to the protocol.  There are stringent trade measures explicitely laid out that also are requirements of the protocol.  Many countries and other international bodies have also developed ways to enforce compliance within their states.  The Montreal Protocol successfully addressed the issue of ozone depletion through International Law.  The best way to address the problem of ozone depletion was through an International treaty because it has the greatest potential of compliance worldwide.

PART III:  DETAILED ANALYSIS OF TREATY TEXT

(I)  The Montreal Protocol on Substances That Deplete the Ozone layer that the Parties of the treaty are to hold regular meetings, in which the first meeting the first meeting will be convened by the Secretariat no later than one year after the protocol has entered into force.  After the protocol has entered into force, ordinary meetings of the party shall be held unless decided otherwise by the parties. [13] The Parties may schedule extra meetings if deemed necessary at the meeting, or by written request of any party.  The request must be communicated to the Secretariat within six months and is supported by at least one third of the parties.[14]

(II)  The Montreal Protocol does have a Secretariat that is responsible for arranging the meetings of the Parties, making pertinent information available to the Parties, and encouraging non-parties to participate in meetings as well as comply with the regulations of the treaty.  In addition, the Secretariat must perform any other functions for the achievement of the protocol from which the parties assign.  The funding for the Secretariat will be provided exclusively from the Parties of the treaty, who will decide by consensus the financial rules for the protocol.

 (III)The Parties are to co-operate jointly or through capable international bodies research, development, and exchange of information on: (1) best technology available for improving the containment, recycling, or destruction of controlled substances. (2) Alternatives to controlled substances, and products produced with them.  (3) Costs and benefits of control strategies.[15]  The Parties are to establish a mechanism to promote financial and technological cooperation, which includes a transfer of technologies.  The parties are to ensure that the best available, safe substitutes and technologies are to be transferred to other Parties operating under the protocol.[16]  These transfers are always to be made under fair and favorable conditions.

(IV) The provisions for amendments[17] of the convention or protocol fall under article 9 of the convention.  It states that:

 (1) any party (does not specify whether state or non-state actor) has the right to propose amendments to the convention or the protocol: granted that the amendment stems from “relevant scientific and technical considerations”;[18]

 (2) the adoption of the amendments shall occur at a meeting of the COP, any amendments to any protocol shall be adopted at a convention of the parties to the protocol. The text of any proposed amendment must be presented to the Parties by the Secretariat at least six months prior to the convention under which the adoption of the amendment will be addressed, unless otherwise specified in the protocol.  The secretariat will also communicate the proposed amendments to the signatories of the Convention for information.

(3)  Every effort will be made by the Parties in order to reach an agreement on any proposed amendment by consensus.  If the Parties are unable to achieve a consensus, then the adoption of the amendment will require a three-fourths majority vote of the Parties attending and voting at the meeting, the result of which will be submitted by the Depositary to all Parties for ratification, approval or acceptance.

(4) Along with the procedure mentioned in paragraph 3 for the adoption of any amendment, the adoption of any amendment can also come from a two-thirds majority vote from the Parties present and voting

(5)  The Depositary will be notified of any amendments that have been ratified, approved or accepted in writing.  The adopted amendment will enter into force, provided that the guidelines of paragraph 3 or 4 have been met, on the ninetieth day after the Depositary receives notification of the ratification, approval or acceptance of the amendment.  The amendment will thereafter enter into force, for any other Party, ninety days after that Party deposits its “instrument of ratification, approval or acceptance of the amendment”.[19]

6. For the purposes of this article, "Parties present and voting" means Parties present and casting an affirmative or negative vote.[20]

(V) The provisions for the entry into force of the treaty are laid out in article seventeen of the treaty text.  It states that the treaty will enter into force ninety days after the deposit of the “instrument of ratification, acceptance, approval or accession” of the 20 Party has been received by the Depositary; (2) the entry into force of a protocol requires that eleven instruments of ratification, acceptance or approval to have been deposited with the Depositary; (3) for any party that ratifies, accepts, approves or provides for the accession of the Convention after the deposit of the twentieth Party, the convention will enter into force on the ninetieth day after its instrument of ratification, acceptance, approval or accession is received by the Depositary; (4)  The entry into force of any protocol, except if otherwise provided for within its’ text, will enter into force for any Party that ratifies, accepts or approves the protocol or accedes after it has entered into force, following the guidelines of paragraph 2 above, on the ninetieth day after the reception of its ratification, acceptance, approval or accession by the Depositary, or on the date on which the Convention enters into force for that Party, whichever shall be the later.

5. For the purposes of paragraphs 1 and 2 above, any instrument deposited by a regional economic integration organization shall not be counted as additional to those deposited by member States of such organization.

Last Revised
May 22, 2007

Copyright © Eduardo Aguilar 2003. All federal and state copyrights reserved for all original material presented in this course through any medium, including lecture or print.