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

Regional Ozone Networks

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.

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The Future

Better identification of needs Consider cross-MEA training for

prosecutors Template of a model laws? UNEP to consider structured

programme for enhancing awareness of judges and prosecutors

Compendium of court cases Hand book on procedures for proving

and prosecuting ODS cases