The International Legal Régime for the Protection of the Stratospheric Ozone Layer

Second Revised Edition

Series:

The Montreal Protocol, which is based on the Vienna Ozone Convention, is known as one of the most successful environmental treaties in the history of international law. These treaties, together with non-binding instruments adopted by the MOP/COP, have gradually formed the so-called ‘ozone régime’ and have exerted a significant influence on the international legal order. The first edition of Professor Yoshida’s monograph, The International Legal Régime for the Protection of the Stratosphere Ozone Layer, published in 2001, provided a renowned and comprehensive contemporary study of the international ozone régime. In the second revised edition, the author provides a detailed analysis of the developments in the ozone régime after the adoption of the 1999 Beijing Amendments, including the operation of the Non-Compliance Procedure and the Kigali Amendment on a global phase-down of HFCs.

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Review Quotes

' Dr. Yoshida has written the most comprehensive contemporary study of the international ozone régime in English. He has explored both the negotiation of the relevant treaties and their operation in practice. His study addresses legal and institutional issues and gives important insights into some of the most novel features of the rigime, including its non-compliance procedure. There is much in his work which will interest both lawyers and international relations specialists. Above all he shows that multilateral, negotiated, solutions to global environmental problems are possible, given sufficient political will. His conclusions deserve the wider appreciation which publication of this book will help to ensure.'
Professor Alan E. Boyle, University of Edinburgh.

Table of contents

List of Cases
Preface to the Second Revised Edition
About the Author
Foreword
Introduction

Part 1: International Legal Régimes


1International Environmental Régimes
I A Preliminary Examination of ‘International Régimes’
II International Régimes in International Environmental Relations
III International Environmental Régimes and International Law
A Law-Making in International Cooperation Régimes of Environmental Regulation
B The Institutionalisation of International Environmental Cooperation
C ‘Soft Enforcement’ of Treaties: Implementation of and Compliance with Legal Obligations of Environmental Régimes
D Non-Governmental Organisations as Actors of International Legal Régimes
IV The Emergence of the ‘Self-Contained’ Régime for Obligations Erga Omnes: Ensuring Universal Compliance
V Conclusions

Part 2: The International Treaties for the Protection of the Ozone Layer


2The 1985 Vienna Convention for the Protection of the Ozone Layer and Principles of Modern International Environmental Law
I Introduction
II The Negotiation of the 1985 Vienna Ozone Convention
 ANational and Regional Regulation of Major Chlorofluorocarons ( CFC s)
 BThe Vienna Convention Negotiation within the UNEP as a Law-Making Forum
 (1)The International Ozone Régime-Building from 1977 to 1980
 (2)The Discussions at the Ad Hoc Working Group (1982–1985)
 (3)Negotiating an Ozone Protocol for Controlling CFC s
 (4)‘The Vienna Ozone Layer Convention is Adopted’
 IIIThe 1985 Vienna Convention for the Protection of the Ozone Layer
A The Definition of ‘Adverse Effects’ Caused by Ozone Depletion
 (1)The Limited Scope of the Term ‘Air Pollution’ in Regional Environmental Treaties
 (2)Adverse Effects Caused by Ozone Depletion
B The Legal Status of the Ozone Layer in General International Law
 (1)National Jurisdiction over the Ozone Layer
 (2)The Ozone Layer as ‘Common Concern of Mankind’
C The Vienna Ozone Convention and the ‘Principle’ of the Precautionary Approach in Modern International Law of the Environment
 (1)The Vienna Ozone Convention and Principle 21 of the 1972 Stockholm Declaration on the Human Environment
 (2)The Vienna Ozone Convention and the Precautionary Environmental ‘Principle’: The Emergence of a New Approach
 (a)International Environmental Cooperation: Developments Subsequent to the Adoption of Principle 22 of the 1972 Stockholm Declaration
 (b)The Precautionary Environmental ‘Principle’ or Approach
D The Provisions of the Vienna Ozone Convention
 (1)The General Obligations: Legal Basis of the Montreal Ozone Protocol
 (2)The Conference of the Parties to the Vienna Ozone Convention
 (3)The UNEP Ozone Secretariat for the Vienna Convention and the Montreal Protocol
 (4)The Dispute Settlement Procedures under the Vienna Ozone Convention
 IVAssessment of the Vienna Ozone Convention
3The Montreal Protocol: The Evolution of the International Regulatory Régime for the Protection of the Ozone Layer
I Introduction
II The Montreal Protocol Negotiation: Preparation on the Protocol on the Protection of the Ozone Layer within the UNEP
A The First Session of the Working Group
B The Second Session of the Working Group
C Toward a Final Decision in Montreal in September 1987
III International Legal Regulation of Specified ODS s under the Montreal Protocol
A The Final Agreement: Provisions of the Montreal Protocol
B International Control Measures for ODS s
 (1)The Substances Covered by the Montreal Ozone Protocol
 (2)The Percentage Reduction Approach: Consumption and Production
 (3)The Ozone-Depleting Potentials ( ODP s)
 (4)The Special Situation of the Former USSR
 (5)Non-Compliance with the Control Measures: Compliance Control
C The Internal Mechanisms for Amendments and Adjustments: Strengthening the System of the International Control Measures
D The European Community as the ‘Regional Economic Integration Organisation’: The Joint Implementation of the ODS Control Measures
E Special Situation of Developing Countries: The ‘Grace Period’ for Article 5 Countries
 (1)The Justification for the Grace Period
 (2)The Grace and Phaseout Period for Article 5 Countries
 (3)The Principle of Common-But-Differentiated Responsibility
 (4)The Consequences of the Grace Period
 IVThe Development of the International Cooperative and Regulatory Ozone Régime: The Evolution of International Control Measures and Other ODS s-Related Issues
A The Need for Revisions of the 1987 version of the Protocol: New Scientific Knowledge on the State of the Ozone Layer
B The 1989 Helsinki Ozone Meeting and Its International Soft Law
C The 1990 London Ozone Meeting: Strengthening the Control Measures and the Establishment of the Multilateral Fund
D The 1992 Copenhagen Ozone Meeting: Strengthening the Control Measures of HCFC s and the Establishment of the Montreal NCP
E The 1995 Vienna Ozone Meeting: The Control Measures for HCFC s and Methylbromide, and the Extension of the Grace Period
F The 1997 Montreal Ozone Meeting: Control Measures of Methylbromide and Illegal Trade in CFC s and ODS s
G The 1999 Beijing Ozone Meeting: A Freeze in HCFC s Production and the Control of a New ODS – Bromochloromethane
H The 2007 Montreal Ozone Meeting: Adjustments for Accelerating HCFC s Phaseout
I The 2016 Kigali Ozone Meeting: Phasing Down of Hydrofluorocarbons ( HFC s)
 VThe Domestic Implementation of the International Treaties for the Protection of the Ozone Layer
A Introduction
B Domestic Implementation of the Ozone Treaties in Japan
 VIConclusions

Part 3: The Ozone Layer Régime and the Wto/Gatt Law Régime


4The Montreal Ozone Protocol Régime and the International Trade Law Régime of the WTO/ GATT
 IIntroduction
A Multilateral Environmental Agreements and WTO /gatt Law
B Multilateral Environmental Agreements ( MEA s)
 IIThe International Régime for Trade Restrictions of ODS s
A The Background of Article 4 of the Montreal Protocol: Resolving the Problem of Non-Participation in the MEA Régime
B Article 4 of the Montreal Protocol: Process and Production Method-Related Arguments
 IIIThe WTO / GATT Trade Law
A The WTO / GATT Law
B The Governing Economic Principles of GATT Law
C GATT Case-Law
 IVThe Legal Conflicts between MEA s and WTO / GATT Trade Law
A The Legal Conflicts between MEA s and WTO / gatt Trade Law
B The Relationship between MEA Dispute Settlement Procedures and the WTO Dispute Settlement System: The Montreal NCP or the WTO Dispute Settlement Procedures?
 (1)General Discussions
 (2)The NCP or the WTO Dispute Settlement Procedures?
 V GATT Article XX and the Global Protection of the Ozone Layer under the Montreal Protocol
A The Exceptions under GATT Article XI (1) and XX
B GATT Article XI (2) Exceptions and the Montreal Protocol
C The Preamble Conditions for GATT Article XX Exceptions and Article 4 of the Montreal Protocol: Compliance with the Terms of the Chapeau
D GATT Article XX(b) and the Protection of the Ozone Layer
 (1)Article 4 of the Montreal Protocol is ‘Necessary’ to Protect Human Health and the Environment: GATT Article XX(b) and International Environmental Law
 (2)Environmental Objectives of the International Ozone Régime are widely recognised by the International Community
E GATT Article XX(g) and the Protection of the Ozone Layer
 VIConclusions

Part 4: The Compliance System of the Montreal Protocol


5The Montreal Non-Compliance Procedure and the Functions of the Internal International Organs
I The Montreal Non-Compliance Procedure ( NCP )
A The Judicial Settlement of International Environmental Disputes
B The Avoidance and Quasi-Judicial Settlement of Multilateral Environmental Disputes: The Non-Compliance Procedure ( NCP )
II The Negotiation of the Montreal NCP
III The Meaning of ‘Non-Compliance’ in the Montreal Protocol: A Grey Area of the International Ozone Régime
A The Meaning of ‘Non-Compliance’ in the Evolving Ozone Régime
B Depoliticising Multilateral Environmental Disputes? The Relationship between the NCP and the Dispute Settlement Mechanisms in the Vienna Ozone Convention
 IVThe Mechanics of the Operation of the Montreal NCP : The Functions of the Specialised Internal Treaty Bodies
A The Structure of the Montreal NCP
 (1)The Actors of the NCP
 (2)The Principle of Good Faith ( Bona fides)
B The Functions of the Internal International Agencies in the Montreal Non-Compliance Procedure
 (1)The UNEP Ozone Secretariat
 (2)The Implementation Committee of the NCP
 (a)The Structure of the Implementation Committee
 (b)The Functions of the Committee in the Montreal NCP
 (3)The Meeting of the Parties to the Montreal Protocol
 (a)The Functions of the Meeting of the Parties in the NCP
 (b)The Legal Nature of the Decisions of the Meeting of the Parties
 VThe Principal Features of the NCP : The Montreal NCP , International Conciliation and Other Dispute Settlement Procedures
A The Montreal NCP as a Multilateral Conciliation Mechanism
 (1)International Conciliation and the NCP
 (2)From Conciliation to the Political Organ of the MEA
B The Dispute Settlement Mechanisms Used by Other International Institutions
 (1)The WTO / GATT Non-Violation Procedure in International Economic Law
 (2)The ILO Complaints Procedure
VI The Montreal NCP Theory: Soft Enforcement of International Environmental Law
VII The Montreal NCP in Practice
A Ensuring Compliance with Reporting Requirements, Control Measures and Trade Restrictions
 (1)The Reporting Requirements
 (2)The Control Measures of ODS s
 (3)Trade with Non-Parties
B Case Study: Non-Compliance by the Russian Federation and the Reactions of the NCP Organs
 (1)The Russian Federation and the CEIT s
 (2)Russia’s Non-Compliance Case
VIII Conclusions
6The Financial Mechanism of the Montreal Protocol and the International Transfer of Ozone-Friendly Technology: Capacity Building in the Ozone Régime
I The Concept of Capacity Building in International Environmental Law
A The Definition of Capacity Building
B Capacity Building and MEA s
II The Negotiation Process of the Montreal Multilateral Fund and Issues Related to Technology Transfer
A Capacity Building under the Vienna Ozone Convention and the Montreal Protocol
B The Negotiation of the Montreal Multilateral Fund and Technology Transfer
III The Structure of the Financial Mechanism of the Montreal Protocol
A General Legal Aspects
B The Role of the International Agencies in the Financial Mechanism
 (1)The Executive Committee
 (2)The Multilateral Fund Secretariat
 (3)The Implementing Agencies
 (a)The World Bank
 (b)The United Nations Development Programme ( UNDP )
 (c)The United Nations Environment Programme ( UNEP )
 (d)The United Nations Industrial Development Organisation ( UNIDO )
C The Global Environment Facility ( GEF )
D Strategies: Work Programmes, Country Programmes and Institutional Strengthening
 (1)Work Programmes
 (2)Country Programmes
 (3)Institutional Strengthening for Project Implementation
 (4)The Conditionally between MLF Funding and Compliance with the Protocol
IV Special Considerations for the International Transfer of Ozone-Friendly Technology
A International Technology Transfer
B International Technology Transfer of ODS Reduction
V The Operation of the Financial Mechanism of the Montreal Protocol
A The Effectiveness of the Montreal Multilateral Fund
 (1)The Phaseout of Controlled ODS s
 (2)The Transfer of Technology of ODS s
VI Conclusions

Part 5: Conclusions


7The International Legal Régime for the Protection of the Ozone Layer
Appendices
I The 1985 Vienna Convention for the Protection of the Ozone Layer
II The 1987 Montreal Protocol on Substances That Deplete the Ozone Layer, as adjusted and amended by the Second Meeting of the Parties (London, 27–29 June 1990) and by the Fourth Meeting of the Parties (Copenhagen, 23–25 November 1992) and further adjusted by the Seventh Meeting of the Parties (Vienna, 5–7 December 1995) and further adjusted and amended by the Ninth Meeting of the Parties (Montreal, 15–17 September 1997) and by the Eleventh Meeting of the Parties (Beijing, 29 November – 3 December 1999) and further adjusted by the Nineteenth Meeting of the Parties (Montreal, 17–21 September 2007) and further amended by the Twenty-Eighth Meeting of the Parties (Kigali, 10–15 October 2016)






III The Non-Compliance Procedure (1998)
 Indicative List of Measures that Might be Taken by the Me

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