Montreal Protocol and Convention on Biological Diversity

Both the Montreal Protocol and the Convention on Biological Diversity were ratified in the early 1990s, the peak of environmental diplomacy.61 borrow Stalley’s approach to scrutinising two dimensions of implementation: enforcement and compliance, the former indicating how stringent the government is and the latter looking at the performance of various involved groups and actors.7 The aspect of compliance is further divided into substantive compliance, evaluated based on the achievement of the objectives of treaties and procedural compliance, which provides a “legal and institutional framework for satisfying substantive requirement”, including establishment of institutions and reporting of data and information.8 Instead of differentiating compliance as substantive versus procedural, I modify the word “differentiation" to “implementation” to distinguish patterns of action hi these two compared cases.

Stalley and Zhao categorise the process of implementation on a different basis: Stalley adopts the perspective of actors (government versus industry), whereas Zhao employs a more abstract means versus end dichotomy. Their different methods lead to the two-by-two matrix shown in Table 3.1, which is to structure the evaluation of the degree of implementation of the Montreal Protocol and the CBD.

Implementing both the Protocol and the Convention is characterised by a strong determination of enforcement, with a leading agency and cross-ministerial coordination. The Venn diagram in Figure 3.1 displays various government agencies

Table 3.1 Matrix of implementation

Enforcement agency (e.g., government)

Compliance agency > (e.g., industiy, firms)



Implementing agencies of the Montreal Protocol and CBD

Figure 3.1 Implementing agencies of the Montreal Protocol and CBD

Source . Compiled by the author based on information on the official website of “Ozone Action in China” ( html) and “Coordination working group for China's implementation of CBD” (http://sts.mep .htm) www.7c .gov. cn/color/DisplayPages/download/pdf!06chin.pdf involved in the enforcement and highlights seven institutions working on both treaties in the middle of the diagram. The leading agency of both treaty implementations is the State Environmental Protection Administration, since 2008 the Ministry of Environmental Protection.9 The overlapping agencies indicate the commonality of the nature of these two treaties both as a matter of foreign policy, finance, development and planning, science and technology, agriculture, public security and customs.

The Venn diagram also demonstrates how these two treaties address divergent issues and involve a variety of interest groups. The enforcement agencies designed for the Montreal Protocol are dominated by industry-related departments, including petroleum and chemical, light industry, tobacco and aviation. In comparison, the focus of CBD implementation seems to lie in media, communication and education. Conversely, the differences and complexities of implementing these treaties are acknowledged and elaborated upon later.

The objective of the Montreal Protocol in general is to control and set a timetable for countries to phase out ozone-depleting substances (ODSs) and chemicals that destroy the ozone layer. Controlled substances include chlorofluorocarbon (CFCs), halons, other frilly lialogenated CFCs, carbon tetrachloride, methyl chloroform, hydrochloro fluorocarbons (HCFCs), hydrobromofluorocarbons, methyl bromide and bromochlorometliane. China is an Article 5 country, which is defined in the treaty as a developing country whose annual calculated level of consumption of ODSs is less than 0.3 kilograms per capita on the date of the entry into force of the Protocol.10 This means it is granted more time, together with funding and technology, to fulfil the objectives. The ultimate purpose of the CBD is threefold, as enshrined in Article 1: “the conservation of biological diversity, the sustainable use of its components, and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources”.11 Similar to the Montreal Protocol, the CBD entitles developing countries funding, technology transfer and training and allows each member state to develop national strategies and plans in line with its national conditions and capabilities.12 In this light, I use the objectives identified in the national plan for both treaties.

China’s Country Programme for the Phaseout of Ozone Depleting Substances under the Montreal Protocol (Country Programme) was issued in 1993 and revised five years later as pari of meeting the requirements set by the Multilateral Fund, established in 1991 to offer financial and technical assistance to Article 5 countries. The 1993 Country Programme set the deadline of reducing ODS consumption and production to no more than the 1991 level to 1996, three years earlier than the targets the Protocol set for Article 5 countries. China did not meet its own ambitious target, because the production level exceeded the 1991 level by 94%, and consumption was 65% greater.13 The leading agency to implement the Montreal Protocol, SEPA, thus conducted a review of ODS reduction efforts and existing data and revised the approaches and the objectives. The Protocol required Article 5 countries to freeze CFC and halon consumption and production at average 1995-7 levels by 1999 and 2002. The revised Country Programme identified the ODS production and consumption, production phaseout and consumption phaseout plans for 1999, 2005, 2007 and 2010.14 Furthermore, the Country Programme set objectives for those sectors involved, including foam, industrial and commercial refrigeration, electronic appliances, halon, aerosol spray, automobile air-conditioning and tobacco.

After 1997, the ODS reduction efforts were recognised as a great success. China not only achieved more but also reached its objectives ahead of time. The amount of reduction of the consumption and production levels of CFCs and methyl bromide were 15% to 25% greater than those set in the objective. The consumption and production levels of halon and CTC were cut below the average 1995-7 levels, four years and three years, respectively, before the timeline of the Protocol.15 Chinese efforts to phase out ODS were recognised by the World Bank and the Ozone Secretariat. The fonner awarded its annual Green Award to Xie Zhenhua, the environmental minister, for his leadership in 2003, and the latter recognised China as an “outstanding National Ozone Unit”.16

The national plan to implement the CBD, the China Biodiversity Conservation Action Plan (the “Action Plan” hereafter), was issued and promoted by the State Council in 1994, a procedural implementation of Article 6 of the CBD.17 The Action Plan proposed seven objectives through operating 26 actions and 18 priority projects. The seven objectives were: 1) to strengthen fundamental studies on biodiversity, 2) to improve the network of national nature reserves and other protected areas, 3) to protect wild species significant to biodiversity, 4) to protect the genetic resources of crops and domesticated animals, 5) to establish iu-sitti conservation outside nature reserves, 6)to establish a national network of biodiversity information and monitoring and 7)to coordinate biodiversity conservation with sustainable development.18

The objectives themselves strongly emphasise the procedural dimension of implementation, the most noticeable achievements being at the procedural level and focused on the dimension of enforcement. Cai Lei, a key biodiversity expert and official of the Biodiversity Office under SEPA in the field of CBD implementation, summarised China’s achievements as the establishment of a cross- ministerial coordination mechanism, strengthening of the legal framework, establishment of biodiversity schedules and improvement of the management of nature reserves.19 More than a dozen pieces of biodiversity legislation were promulgated within the decade of implementing the Action Plan. Up until 2006, more than 2000 nature reserves have been established, with 1593 designated regions for natural ecosystem protection (forest, grassland, desert, wetland and marine ecosystems), 669 protected areas for wildlife and 133 for natural remains.

However, establishing a great number of nature reserves does not automatically address the issue of biodiversity loss. In sharp contrast to the previously mentioned achievements, China faces enormous challenges in biodiversity conservation. Scientists from the Chinese Academy of Agricultural Science observe in then research project “The Current Situation and Protection of China’s Biological Genetic Resources” that the decrease of biological species is occurring at an alarming rate and endangered species are being listed on a daily basis.20

The “main culprit” to blame is, surprisingly, researchers who have carried out scientific projects with their foreign counterparts abroad, speculates Xue Dayuan. Whereas genetic biological resources offer only one vantage point of the poor implementation of the CBD, the record of wildlife is another example. According to the “Living Planet Report China 2015” by the World Wildlife Fund (WWF), the population of China’s terrestrial vertebrates dropped by almost 50% in the three decades from 1970 to 2010,21 and the period 1955 to 2010 saw an 83.8% shrinkage in the population of primate species. These two statistics, among others, are evidence to support WWF’s claim that China is “one of the countries with the world’s richest biodiversity, yet it is also one of the countries that has experienced the greatest biodiversity loss”.22 The co-existence of intensive govemment-led procedural implementation and incapability of preserving biodiversity, the fust and foremost objective of the CBD, raises the question of how effective enforcement is in substantive terms and led to a revision of the 1994 Action Plan.

In 2010, the Ministry of Environmental Protection released the China National Biodiversity Conservation Strategy and Action Plan (2011-2030) (or NBCSAP) to address new challenges and identify updated overall objectives, strategic tasks and priorities for the next two decades.23 The launch of the NBCSAP acknowledged the fact that the original Action Plan did not frilly represent the third objective of the CBD: the equitable sharing of its benefits.24 The way the NBCSAP addresses problems and challenges facing biodiversity conservation in China provides the reason for the paradox between strong enforcement and disappointing substantive achievement. Primary problems include the absence of a monitoring and warning system on biodiversity; inadequate investment in biodiversity in terms of scientific input, capacity building and funding and overexploitation of biological resources.25 Furthermore, Xue Dayuan points out the limitations of the current rate of implementation; I refer to this pattern as enforcement style and procedure dominated due to the absence of local authorities and sector-based participation, plus poor compliance.26

In short, the Montreal Protocol represents a pattern of implementation from both the enforcement and compliance dimensions and achieves both procedural and substantive goals, whereas the CBD is characterised by impressive procedural achievement together with a disappointing substantive performance, marked by strong enforcement and weak compliance. For the purposes of comparison, the cut-off point is the year 2010 to evaluate the Action Plan for the CBD and the Country Programme for the Montreal Protocol. It is both a deadline for the ozone- depletion substance phase-out plan and a year in which the Ministry of Environmental Protection officially recognised the importance of sectors in the NBCSAP in which new goals have been set. hi addition, the Chinese government began to change its approach, as indicated in the fourth National Report on the Implementation of the CBD in 2008, towards being sector based.27 This was to address severe biodiversity losses, replicating the approaches deployed in the Montreal Protocol implementation. The next section will explain the interest groups involved in each cell of the matrix for both treaties and explore how their engagement helps explain why certain international treaties are more effectively implemented than others.

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