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Annex II

Appendix B

Page 62

FIGURE: 8


DEVELOPING COUNTRY PRODUCTION OF 10% 1986 GLOBAL AMOUNTS.

10% of CFO/subs with 16‑yr lag (2000/2030)‑‑>(2015/2045) chlorine (ppb)





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Annex II


Appendix B

Page 63


UNEP/OzL.Pro.WG.I(2)/4

Annex III

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Annex III


REPORT OF THE LEGAL DRAFTING GROUP
INTRODUCTION
To adjust or amend the Protocol or an Annex to the Protocol, proposals must be communicated to the Parties by the Secretariat at least six months before the meeting of the Parties at which they will be proposed for adoption. As one stop in this process leading to the preparation of proposals, the legal drafting group attempted to prepare specific proposals for such changes based on proposals made by experts of the Ad Hoe Working Group at their meeting in Nairobi from 28 August‑5 September 1989.
This report presents proposals for modifying the Protocol and describes areas where clarification may be necessary or where legal issues were identified by the drafting group in the proposals suggested by experts of the Ad Hoe Working Group.
Modifying the Protocol
The level drafting group first discussed the three options for modifying

the Protocol: adjustments under Article 2 paragraph 9, amendments to the Protocol, and amendments to Annexes.


Specific proposals for modifications
The following sections present article‑by‑article, proposed changes to the Protocol. Specific proposed language is followed by a brief summary of the discussions of the legal drafting group which sought to identify issues which may require additional review by the Parties.
The bracketed text below contains new language proposed for addition to the Protocol. Text now in the Protocol was left unbracketed unless it is proposed for deletion; in that case, it Is underlined. In many cases, alternative proposals follow one another and are also shown in brackets. Existing text from the Protocol that would be deleted if the proposal were accepted is underlined.
ARTICLE 2: CONTROL NUSURES
A. Para 1:No proposed changes
B. Para 2:No proposed changes
Comment: While no specific proposals were submitted, the drafting group southt further clarification as to whether Parties wanted to advance the date at s‑hich the freeze on halons takes effect. Given the time required for an adjustment to the Protocol, an acceleration of only less than a year would be possible.

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C. Additional language to reduce halons


The following language would be added after Article 2, paragraph 2:
(2 bis. Each Party shall ensure that for the twelve month period commencing on 11 January 19951 1/ (1 January 1997) (1 January 20001, and in each twelve‑month period thereafter, its calculated level of consumption of the controlled substances listed in Group II of annex A does not exceed [ninety) [fifty) per cent of its calculated level of consumption in 1986. Each Party producing one or more of these substances shall, for the same periods, ensure that its calculated level of production of these substances does not exceed [ninety] [fifty) per cent of its calculated level of production in 1986. However, in order to satisfy the basic domestic needs of the Parties operating under Article 5 and for the purposes of industrial rationalization between Parties, its calculated level of production may exceed that limit by no more than [to be determined] per cent of its calculated level of production in 1986.1
[2 ter. Each Party shall before (1 January] [31 December] [20001 (20051 ensure that its consumption of the substances listed in Group II of Annex A is [eliminated). Each Party producing one or more of these substances shall ensure that, before (1 January) [31 December] [19951 [20001 420051, its production of the substances is [eliminated]. However, in order to satisfy the basic domestic needs of the Parties operating under Article 5 and for the purposes of industrial rationalization, such level may continue by no more than [to be determined] per cent of its calculated level of production in 1986.
[This paragraph will apply unless the Parties determine that essential uses exist for which no alternatives are available at that date, based on information contained in the assessments referred to in Article 6 to be conducted by the Parties in 119941 119981 1. [Notwithstanding the above, in order to satisfy its needs for essential uses, to be determined by the Parties in their Assessments referred to in Article 6, its calculated level of , consumption and production may exceed those limits by no more than [five) per cent of their calculated levels in 1986.1
Comment: The drafting group included provisions to allow limited production increases for industrial rationalization and exports to developing countries that are Parties consistent with existing provisions, but lacked specific guidance on this issue. The group has used the term "elimination" to denote a complete phase‑out. This term may require a definition in Article 1.

______________


l/ Bracketed text denotes that alternative proposals have been suggested.
2/ Underlining denotes text now contained in Protocol that is proposed for deletion.

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D. Additional reductions of CFCs


3. Each Party shall ensure that for the twelve‑month period commencing on

U July 19911 [1 January 19931 1 July 1993 2/ and in each twelve‑month period thereafter, its calculated level of consumption of the controlled substances in Group I of Annex A does not exceed annually, eighty (fifty] per cent of its calculated level of consumption in 1986. Each Party producing one or more of these substances shall, for the same periods, ensure that its calculated level of production of the substances does not exceed, annually, eighty [fifty) per cent of its calculated level of production in 1986. However, in order to satisfy the basic domestic needs of the Parties operating under Article 5 and for the purposes of industrial rationalization between Parties, its calculated level of production may exceed that limit by not more than ten (to be

determined] per cent of its calculated level of production in 1986.
(3 bis. Each Party shall ensure that for the twelve‑month period commencing on U July 19951 and in each twelve‑month period thereafter, its calculated level of consumption of the controlled substances in Group I of Annex A does not exceed. Annually, fifteen per cent of its calculated level of consumption in 1986. Each Party producing one or more of these substances shall, for the same periods, ensure that its calculated level of production of the substances does not exceed, annually, fifteen per cent of its calculated 4evel of production in 1986. However, in order to satisfy the basic domestic needs of the Parties operating under Article 5 and for the purposes of industrial rationalization between Parties, its calculated level of production may exceed that limit by not more that [to be determined) fifteen per cent of its calculated level of production in 1986.1
[3 ter. Each Party shall ensure that before [I January 20001 (31 December 20001, its consumption of the controlled substances listed in Group I of Annex A is [eliminated.] Each Party producing one or more of these substances shall, commencing on 11 January 20001 [31 December 20001, ensure that its production of these substances is [eliminated.] However, in order to satisfy the basic domestic needs of the Parties operating under Article 5 and for the purposes of industrial rationalization between Parties, its calculated level of production may continue up to [to be determined) per cent of its calculated level of production in 1986.
[This paragraph will apply unless the Parties determine that essential uses exist for which no alternatives are available at that date, based on information contained in the assessments referred to in Article 6 to be conducted by the Parties in [19941 [19981 1.
[Notwithstanding the above, in order to satisfy its needs for essential uses to be determined by the Parties in their assessments referred to in Article 6, its calculated level of consumption and production of the controlled substances in Group I of Annex A may exceed those limits until 2005 by not more than [five] per cent of their calculated level in 1986).

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(Y. Each Party shall ensure that for the twelve‑month period commencing 11 January] [1992‑4] [1995] [2000] and in each twelve‑month period thereafter its consumption of the controlled substance in Group V of Annex A does not exceed, annually, [fifty] [seventy‑five) per cent of its consumption in 11986/7/8/9). Each Party producing the controlled substance listed in Group V of Annex A shall ensure that for the twelve‑month period commencing on 1 January [1992‑19941 [19951 [20001, and for every twelve‑month period thereafter, its production of the controlled substance shall not exceed [fifty] [seventy‑five] per cent of its consumption in (1986/7/8/9). However, in order to satisfy the basic domestic needs of Parties operating under Article 5 and for the purposes of industrial rationalization between Parties, its calculated level of production may exceed that limit by not more than [to be determined I per cent of Its production in 11986/7/8/9).


[Z. Each Party shall ensure that by 131 December] 119911 120001 its consumption of the controlled substance listed in Group V Annex A is [eliminated). Each Party producing this substance shall by [31 December] [19911 [20001 ensure that its production is [eliminated). However, in order to satisfy the basic domestic needs of the Parties operating under Article 5 and for the purpose of Industrial rationalization between Parties, Its production may continue up to [to be determined] per cent of its level of Production in (1986/7/8/91. [This paragraph will apply unless‑the Parties determine that essential uses exist for which no alternatives are available at that date, based on Information contained in the assessments referred to in Article 6.1
Comments: same issues as above
I. Add section with limits on other ozone depleting chemicals with ODPS

equal to or greater than 0.01: Group VI of Annex A
The following paragraph would be added to Article 2:
[X. other ozone‑depleting substances with ODPs equal to or greater than 10.011 should be controlled by only allowing their use in critical products and consumption areas, as decided by the Parties.]
Comments: The Drafting Group recommends that the Parties provide additional details to enable it to draft a more specific proposal. Questions concerning what controls over what time period on what chemicals must be more fully addressed. A more detailed discussion of the proposal is contained In CRP.13 for discussion at the next meeting of the working group. The legal drafting group also discussed, but did not resolve, the issue of whether chemicals had to be specified by name in any Annex to the Protocol or Whether they could be regulated as a class.
J. Article 2, para.9 (c):

After the existing provisions, add the following:

[Provided that any decision insofar as it affects the Parties operating under Article 5 (1) shall not be taken without the consent of two‑thirds of such Parties present and voting.]

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Comment: Further clarification may be required concerning the definition of "affects."


K. General note of clarification on Article 2

While not suggesting a specific proposal for amendment:


A number of delegations from developing countries expressed the view that any amendment to Article 2 of Protocol aimed at accelerating the reduction and elimination of production and consumption of controlled substances or at including new substances, must not involve treatment less favourable than the differential and preferential treatment currently established In Articles 2 and 5. In addition, these delegations stated that the application to developing countries of Article 2, in its current form or with amendments, or of other related provisions must necessarily entail the adoption of a financial mechanism, for example an international fund, to enable the developing countries to meet their obligations under the Protocol.
L. Article 2. Paragraph 5 ‑ 25 kilotonne transactions
Any Party whose calculated level of production in 1986 of the controlled substances in Group I of Annex A was less than twenty‑five kilotonnes may, for the purposes of industrial rationalization, transfer to or receive from any other Party calculated level production in excess of the limits set out in paragraph 1, [21 3 and 4, provided that the total combined calculated levels of production of the Parties concerned does not exceed the production limits set out in this Article. Any transfer of such production shall be notified to the Secretariat no later than the time of the transfer.
Comments: The drafting group discussed whether It would be desirable to eliminate all references to the terms "Industrial rationalization" in the control paragraphs in Article 2. Such allowances might now prove redundant with the proposed change in this paragraph. The Group concluded that this was a matter for further discussion by the Parties.
Article 3: calculation of control measures
A. Article 3, subpara.(e) would be amended as follows:

Consumption by adding together its calculated levels of production and

imports and subtracting its calculated level of exports as determined in

accordance with subparagraphs (a) and (b). However, beginning on

1 January 1993 [19911, any export of controlled substances to non‑parties

shall not be subtracted in calculating the consumption level of the

exporting Party.
Comment: The Drafting Group questioned whether the process for this

amendment to the Protocol could be completed before

1 January 1991.'

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Article 2, paragraph 4 would be deleted.


Comment: The legal drafting group has included as an option shifting the control periods for Group I substances to a calendar year. Doing so, would create either one six‑month control period (at the time of transition around 1992/3) or two overlapping control periods. The quantity of additional production for Article 5 Parties or for industrial rationalization was also identified as an issue for the Parties to address. The need for continued availability of production increases for "Industrial rationalization" following a phase‑out was also raised and might no longer be required.
E. Reductions of other fully halogenated CFCs: Group III of Annex A
[Y. Each Party shall ensure that for the twelve‑month period commencing on [1 July 19911 [1 January 1993 and In each twelve‑month period thereafter, its calculated level of consumption of the controlled substances in Group III of Annex A does not exceed annually, [fifty] per cant of its calculated level of consumption in [1986/7/8/91. Each Party producing one or more of these substances shall, for the same period, ensure that its calculated level of production of the substances does not exceed, annually, [fifty] per cent of its calculated level of production in [1986/7/8/9). However, in order to satisfy the basic domestic needs of the Parties operating under Article 5 and for the purposes of industrial rationalization between Parties, its calculated level‑of production may exceed that limit by not more than [to be determined] per cent of its calculated level of production in [1986/7/8/9].
1Z. Each Party shall ensure that before (I January 20001 131 December 20001 its consumption of the controlled substances listed in Group III of Annex A is eliminated.] Each Party producing one or more of these substances shall, before 11 January 20001 (31 December 20001 ensure that its production of these substances is eliminated.] However, in order to satisfy the basic domestic needs of the Parties operating under Article 5 and for the purposes of industrial rationalization between Parties, its calculated level of production may continue up to [to be determined] per cent of its calculated level of production in (1986/7/8/91. (This paragraph will apply unless the Parties determine that essential uses exist for which no alternatives are available at that date, based on information contained in the assessments referred to in Article 6 to be conducted by the Parties in.[19941 (19981 1.
Comment: Finally, the group discussed the desirability of specifying chemicals covered by the new Group III addition to Annex A and sought additional guidance from the Parties on this matter. The group also discussed as an alternative adding Group III of Annex A to the control provisions affecting Group I.
F. Limits on carbon tetrachloride: Annex A, Group IV
The following paragraphs would be added to Article 2:
[X. Each Party shall ensure that for the twelve‑month period commencing on U January 19921 131 December 19921 and in each twelve‑month period thereafter, its consumption of the controlled substance listed in Group IV of Annex A shall, for the same periods, not exceed fifty per cent of its

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(1986/7/8/91 consumption. Each Party producing this substance shall, for the same periods, ensure that its production of this controlled substance does not exceed fifty per cent of its [1986/7/8/9) calculated level of production. However, in order to satisfy the basic domestic needs of Parties operating under Article 5 and for the purposes of industrial rationalization its production may exceed that limit by not more than [to be determined] per cent of its production in (1986/7/8/91.


[Y. Each Party shall ensure that by [1 January] [31 December] [19951 120001 consumption of the controlled substance listed in group IV of Annex A is eliminated. Each Party producing this substance shall by 11 January [31 December] 119951 [20001 ensure that Its production of this substance is [eliminated]. However, in order to satisfy the basic domestic needs of the Parties operating under Article 5 and for the purpose of industrial rationalization between Parties, its calculated level of production may continue up to [to be determined] per cent of its production in [1986/7/s/9).
G. Add carbon tetrachloride and CFC‑112 to Annex A. Group I
Carbon tetrachloride and CFC‑112 would be added to Annex A, Group I as follows:
Substance ODP
_______________________________
"CC14 carbon tetrachloride 1.1"

**C2Cl4F2 CFC‑112 [unknown)"




Comment: This addition of carbon tetrachloride and CFC‑112 to Group I chemicals might be done as an adjustment or an amendment to an Annex (Article 10 of the Convention). The intention is to achieve faster means of regulating this chemical, but questions were raised in the drafting group concerning the applicability of current provisions in Article 2, paragraph I to the addition of new chemical to an existing Group in Annex A and whether the procedure would be different.
H. Limits on methyl chloroform: Group V of Annex A
The following paragraphs would be added to Article 2:
1Z. Each Party shall ensure that for the twelve‑month period commencing six months after entry into force of this Amendment and in each twelve‑month period thereafter, its consumption of the controlled substance listed in Group V of Annex A does not exceed its [1986/7/8/91 consumption. Each Party producing this substance shall ensure that its production of the controlled substances, for the same periods, does not exceed its (1986/7/8/91 production. However, in order to satisfy the basic domestic needs of Parties operating under Article 5 and for the purposes of Industrial rationalization between Parties, its production may exceed that limit by not more than (to be determined] per cent of production in (1986/7/8/9).

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ARTICLE 4: CONTROL OF TRADE WITH NON‑PARTIES


A. Paragraph 2
Paragraph 2 would be changed as follows:

2. Beginning on 1 January 1993 119911, no Party (operating under

paragraph 1 of Article 5 may export any controlled substance to any

State not party to this Protocol.


B. Paragraph 4 would be changed as follows:
The Parties shall, following the procedures in Article 10 of the Convention elaborate in an Annex by the end of 1991 a list of products produced with or containing controlled substances. Parties that have not objected to this Annex in accordance with the procedures in Article 10 of the Convention shall ban, within one year (31 December 1992) of the annex having become effective the import of such products from any State not party to the Protocol.
C. Additional changes to paragraphs 3 and 4.

At the end of each of the paragraphs, add the following:

[or any Party which is in non‑compliance as determined under Article 8.1
Comment: Preliminary indications are that this issue has been discussed by the Working Group of Legal Experts on Article 8 non‑compliance procedures and that they will propose a different approach at the June 1990 meeting of the Parties.
D. Paragraph 5
Paragraph 5 would be amended as follows:
5. Each Party shall discourage [ban] the export, to any State not party to this Protocol, of technology for producing and for utilizing controlled substances.
E. Paragraph 6
Paragraph 6 would be amended as follows:
Each Party shall refrain from Providing [ban] new subsidies, aid, credits, guarantees or insurance programmes for the export to States not party to this Protocol of products, equipment, plants or technology that would facilitate the production of controlled substances.
Article 5: special situation of developing countries
A. Paragraph 1 would be replaced as follows:
(5 (1) "The control measures set out in paragraphs 1 to 4 of Article 2 shall not apply to any Party that is a developing country and whose annual calculated level of consumption of the controlled substances is less than 0.3 kg. per capita on the date of the entry into force of the Protocol for it, or

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any time thereafter within ten years of the date of entry into force of the Protocol. However, such a Party shall not exceed an annual calculated level of consumption of [0.31 [less than [0.31 or a different figure for different developing countries) kg. per capita and shall initiate promptly and take all necessary steps to implement the objectives of the Protocol by utilizing all technology and resources accessible to it for transition away from the controlled substances. [Any such Party shall be entitled to use either the average of its annual calculated level of consumption for the Period 1995 to 1997 inclusive on a a calculated level of consumption of 0.3 kilotrammes per capita whichever is the lower. as the basis for its compliance with the control measures.)


(5 (1) bis "A meeting of the Parties shall review the situation in respect of Parties operating under this Article in 1999, taking into account the progress in the research and development of substitutes for CFCs, the technology for using such substitutes, the availability of such technologies to the developing countries and the situation of actual use of technologies by the Parties operating under this clause and their special needs of economic development and adopt such provisions regarding production and consumption of controlled substances as are feasible and necessary to meet the objectives of the Protocol"].
A new article would be added as follows:
[The Parties undertake to facilitate access of adequate information on products containing or requiring for operation, one or more of the controlled substances, before such are exported to Parties operating under Article 5. Any Party that exports any such products to a Party operating under Article 5 without providing information on any controlled substances contained in or required for operation of the product shall, if requested by the Party operating under Article 5, provide either (a) substitute substances for the product that are not controlled; or (b) a substitute product that does not contain or require the use of controlled substances [without any extra cost].
Amendment of Article 5 (2):
The Parties [that are developed countries] undertake to facilitate access to environmentally safe and [technologically and economically) [feasible] [alternative substances and technology for Parties that are developing countries and assist them to make expeditious use of such alternatives.)
Add Now Article 5 (3):
For the purpose of the Protocol, the Parties that are developed countries undertake through the establishment of an effective financial mechanism to provide the developing countries with sufficient financial assistance to permit them to meet the increased burden arising from their transition to non‑ozone‑depleting substances and alternative technologies, so that they may be able to become Parties to the Protocol as early as possible. The establishment of the above mechanism shall not preclude the provision of subsidies, aid, credits, guarantees or insurance programmes for the same purpose through bilateral or multilateral channels.

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Add new Article 5


4. After the Parties consider and adopt the expanded list of controlled substance in Annex a of the Protocol and the acceleration of the control process as provided by the Protocol, the Parties that are developed countries shall ensure that the provisions of paragraphs 2 and 3 above and the expanded list of controlled substances ad the acceleration of the control process be accordingly implemented simultaneously.

Article 7: Reporting Data


  1. Reporting of Imports and Exports for Regional Economic Integration Organizations.

The following addition to article 7 was proposed:

[3. For Parties operating under the provision of Article 2 paragraph 8(a) the requirements in paragraph 2 of this Article in respect of statistical data on imports and exports shall be satisfied if the regional economic integration organization concerned provides data on trade between the organization and State that are not members of that organization.]


  1. Addition of Reporting of HCFCs/HFCs


Comment: Biennial reporting of data appears to be required under Decision 2 of the meeting of the Parties of the Vienna Convention. In addition, if HCFCs are included under the Protocol as controlled substances, reporting would automatically be required. However, the approach would not include reporting of HFCs.

Article 10: Technical
A new paragraph would be added to accomplish the following:

The provisions for technical assistance do not specifically provide for the transfer of technology for substitute substances, raw-material required for manufacturing of such substances, the equipment etc. There should be specific and comprehensive mention of these aspects in the Protocol. The working Group at its next meeting on technical assistance work plans is expected to work out the details. The new article can be drafted only after the Working Group completes its work.


Article 13: Financial Provisions
The following paragraph would be added to accomplish the following:

The incremental costs to be incurred by the Parties to the Protocol operating under Article 5 (1) for meeting their obligations under the Protocol shall be compensated to such Parties, till such obligations are fulfilled, in the following manner:


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(a) Each of the Parties operating under Article 5(1) may present to the Secretariat of the Protocol an estimate of such incremental costs at least a year in advance of the incidence of such costs;


(b) The fund required for paying compensation shall be contributed fully by the Parties not operating under Article 5(1), each such party contributing in each year in proportion to its consumption of controlled substances in 1986, at least six months in advance of the requirement of funds;
(c ) Every four years a Committee shall be established by the Parties, for a four year term, with equal representation of Parties operating under Article 5(1) and other parties. The Committee shall scrutinise the estimates and decide on the compensation to be paid to each of the Parties operating under Article 5(1). The Secretariat of the Protocol shall disburse the compensation each year, in accordance with the decisions of this Committee.
Article 19: Withdrawal
Article 19 would be amended as follows:
For the purposes of this Protocol, the provisions of Article 19 of the Convention relating to the withdrawal shall apply, except with respect to Parties referred to in paragraph 1 of Article 5. Any such Party may withdraw from this Protocol by giving written notification to the Depositary at any time after four years of assuming the obligations specified in paragraphs 1 to 4 of article 2. Any such withdrawal shall take effect upon expiry of one year after the date of its receipt by the Depositary, or on such later date as may be specified in the notification of the withdrawal.
Comment: Because paragraph 4 of article 19 of the convention states that any party that withdraws from the convention automatically is withdrawn from any Protocol, the intended goal of article 19 may not be realized . the legal drafting group suggests additional review of this issue by the Parties.
PREAMBULAR PARAGRAPHS
The following changes were proposed:
Preambular paragraph 6: the last phrase should read:
"Taking into account technical, economic [and developmental]

considerations."


Preambular Paragraph 7: Add at the end ["….. including the provision of new and additional (adequate) financial resources and access

to relevant technologies."]


Preambular 9: Replace:
"considering the importance of promoting international co-operation in the research and development of science and technology…….."

Proposed change to Annex A
Group III - Other fully halogenated CFCs

Group IV - Carton tetrachloride



Group V - Methyl chloroform

Group VI - Other Ozone-depleting Chemicals with ODP equal Greater than 0.01.

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