Experiences from the Montreal Protocol: Prosecutors as one element of the enforcement chain Dr Ezra Clark 26 June 2012 Bratislava, Slovakia

Major impacts of ozone depletion:  Cataracts  Skin Cancer  Weakened Immune System  Damage to livestock and terrestrial plant life  Damage to aquatic eco-systems  Damage to materials

 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 controlled ozone depleting substances

Human health  Incidence of skin cancer without Montreal Protocol: 300% increase by 2100  Incidence of skin cancer with Montreal Protocol: peak of 10% increase by 2060  Avoided 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 emission  11 billion tonnes CO 2 equivalent per year (Molina, 2009)  Reduction in greenhouse gas emissions over 20 years valuated at carbon markets as: US$ 3262 billion

Montreal Protocol adopted Multilateral Fund established CFC freeze CFC 50% reduction CFC 85% reduction CFCs & halons phased out Methyl bromide phased out HCFCs phased out

 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

 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

Global ODS smuggling in 1990s  20 thousand tonnes per year  thousand UDS per year Global ODS smuggling in 2000s  7–14 thousand tonnes per year  million USD per year Operation "Sky Hole Patching” in  27 seizures with 155 tonnes of ODS in Asia Operation "Sky Hole Patching II” in 2010  28 seizures with 64 tonnes of ODS  728 items of ODS-containing equipment seized  2 tonns of cocaine seized together with CFC cylinders

 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

 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

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

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)

 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

 Detection  Inspection  Seizure  Determination/Investigation  Decision to prosecute  Publicise

 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

 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

 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.

 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 cases19