experiences from the montreal protocol: prosecutors as one element of the enforcement chain dr ezra...
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Experiences from the Montreal Protocol:
Prosecutors as one element of the enforcement chain
Dr Ezra Clark26 June 2012
Bratislava, Slovakia
Ozone Depletion
Major impacts of ozonedepletion:
Cataracts Skin Cancer Weakened Immune System Damage to livestock and terrestrial plant life
Damage to aquatic eco-systems Damage to materials
Montreal Protocol on Substances that Deplete the Ozone Layer In 1985, the Vienna Convention for the Protection of the
Ozone Layer was adopted.
The Montreal Protocol on substances that deplete the ozone layer entered into force in 1987, and now has Universal Ratification (197 Parties).
Specific, time-targeted actions to reduce and eliminate the production and consumption of ozone depleting substances.
Multilateral Fund for implementation of the Montreal Protocol provides the resources
Has enabled reductions of over 97% of all global consumption of controlledozone depleting substances
A few examples
Human healthIncidence of skin cancer without Montreal Protocol: 300%
increase by 2100Incidence of skin cancer with Montreal Protocol: peak of 10%
increase by 2060Avoided cataract cases in USA with Montreal Protocol: 22
million cases by 2100 (USEPA, 2010)Plants & trees & aquatic organisms
Benefits from avoided reduction of crop harvest in USA:USD 49 billion by 2075
Avoided damages to agricultural and fishery yields and materials: US$ 459 billion dollars by 2060
Avoided greenhouse gases emission11 billion tonnes CO2 equivalent per year (Molina, 2009)Reduction in greenhouse gas emissions over 20 years valuated at
carbon markets as: US$ 3262 billion
Phase –out Dates (developing countries)
Montreal Protocol adoptedMultilateral Fund established
CFC freezeCFC 50% reductionCFC 85% reduction
1987 1991 1999 2005 2007 2010 2015 2030
CFCs & halons phased outMethyl bromide phased out
HCFCs phased out
The rise of Illegal trade
The problem of ODS smuggling was not foreseen when the Protocol was framed.
Though entirely unintentional, there are
elements of the Montreal Protocol that actually contributed to illegal trade.
A significant loophole also existed -
recycled substances
Reasons for smuggling
Different phase-out schedules e.g HCFC phase-out in the EU (2010), accession country (e.g 2016), developed countries (2020) and developing countries (2030)
High-profit margin e.g. refrigerant price at the local markets in China (few USD), Kyrgyzstan (10 USD) and EU (more than 50 USD)
Low risk of being prosecuted e.g. lack of enforcement, little fines and penalties
Continued demand for ODS e.g. long equipment lifetime and high costs of replacement or retrofitting, shortage of recycled HCFC in EU
Magnitude of ODS smuggling
Global ODS smuggling in 1990s20 thousand tonnes per year150-300 thousand UDS per year
Global ODS smuggling in 2000s7–14 thousand tonnes per year25-60 million USD per year
Operation "Sky Hole Patching” in 2006-200727 seizures with 155 tonnes of ODS in Asia
Operation "Sky Hole Patching II” in 201028 seizures with 64 tonnes of ODS728 items of ODS-containing equipment seized2 tonns of cocaine seized together with CFC cylinders
Consequences
Erodes the success of the Montreal Protocol
Undermines compliance and related investment
Loss of taxation and duties Threatens legitimate businesses and values of society
Health and safety costs Damage to equipment
The Legislative response
To combat these activities, measures were taken by the Parties to the Montreal Protocol to address illegal ODS trade in Article 5 countries.
In 1997, a framework was adopted (through
the Montreal Amendment) that required all parties to implement an import/export licensing system to track commerce and facilitate data collection.
Such a licensing (and quota) system should also
allow for better crosschecking of information between importing and exporting countries
UNEP OzonAction Assistance Compliance Assistance Programme (CAP) Policy &
Enforcement Officers (PEOs)– provide direct assistance to National Ozone Units in
developing countries– identification, formulation, implementation &
enforcement of licensing systems, laws, regulations, policies, quota systems
– only MEA that has this global, regional and nationally focused resource to assist Parties in MP compliance
Management of Regional Networks of Ozone Officers– specific actions & coordination on illegal trade issues– 148 developing & 14 developed countries participate
Regional training workshops for customs and enforcement officers and representatives from other government agencies
UNEP OzonAction Assistance...
• Public-Private Partnerships• Informal Prior Informed Consent• Project Sky Hole Patching operations• Regional Enforcement Networking• Bilateral/Border dialogues • Green Customs Initiative • Environmental Crime Media Update• Trade names database• HCFC Phase-out Management Plans (HPMPs)
Prosecution Options:
1. Administrative Action - Customs or Environmental Agency takes the action (usually only monetary penalties)
2. Civil Judicial – Monetary Damages usually higher, Injunctive relief
3. Criminal Judicial - Highest Penalties-Prison sentences and fines
Steps for ODS illegal trade ‘cases’
Detection Inspection Seizure Determination/Investigation Decision to prosecute Publicise
So why are there not may cases?
Very few cases of prosecutions (especially in developing countries)
Structure of national laws can make it difficult
Lack of experience Low Prioritisation of issue Disincentives to seize (costs)
Most cases do not make it to court
OzonAction focus in the enforcement chain
Main focus is Customs and boarder enforcement
Cooperation with environment ministries etc (NOUs)
Also include police/INTERPOL Some activities with prosecutors - but needs are not generally expressed for such assistance
Workshops etc…
Brainstorming Symposium on Illegal Trade in ODS: Integrated Capacity Building of the Enforcement Chain , Paris 9-10 June 2011
Regional Workshop: The Disposal of Counterfeit Goods for the Judiciary, Law Enforcement Officials and Environmental Officers - World Intellectual Property Organization (WIPO) and UNEP, Bangkok, July 3 -4, 2012
Customs and enforcement training under Montreal Protocol and the Green Customs Initiative
Support to create MOUs between customs and national ozone units.