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Experiences from the Montreal Protocol: Prosecutors as one element of the enforcement chain

Experiences from the Montreal Protocol: Prosecutors as one element of the enforcement chain. Dr Ezra Clark 26 June 2012 Bratislava, Slovakia. Ozone Depletion. Major impacts of ozone depletion: Cataracts Skin Cancer Weakened Immune System Damage to livestock and terrestrial plant life

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Experiences from the Montreal Protocol: Prosecutors as one element of the enforcement chain

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

  2. Ozone Depletion 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

  3. 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

  4. A few examples 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 CO2 equivalent per year (Molina, 2009) • Reduction in greenhouse gas emissions over 20 years valuated at carbon markets as: US$ 3262 billion

  5. Phase –out Dates (developing countries) 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

  6. 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

  7. 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

  8. Magnitude of ODS smuggling • Global ODS smuggling in 1990s • 20 thousand tonnes per year • 150-300 thousand UDS per year • Global ODS smuggling in 2000s • 7–14 thousand tonnes per year • 25-60 million USD per year • Operation "Sky Hole Patching” in 2006-2007 • 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

  9. 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

  10. 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

  11. 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

  12. Regional Ozone Networks

  13. 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)

  14. 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

  15. Steps for ODS illegal trade ‘cases’ • Detection • Inspection • Seizure • Determination/Investigation • Decision to prosecute • Publicise

  16. 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

  17. 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

  18. 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.

  19. 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

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