Kyoto carryover is “legally baseless”, international law experts warn Morrison government

A group of leading Australian international and climate law academics have written to the Morrison government warning that plans to use the carryover of Kyoto units under the Paris Agreement have no basis in law.

The letter was signed by nine senior legal academics from most of Australia’s leading law faculties, including the Sydney Law School, the Melbourne Law school and the Australian National University.

The legal experts wrote to prime minister Scott Morrison, energy minister Angus Taylor, foreign affairs minister Marise Payne and the Attorney General Christian Porter, warning that the proposed use of the excess Kyoto credits was “legally baseless” in international law.

The letter argues that the carbon accounting loophole that the Morrison government is trying to exploit doesn’t even exist.

“In our view, units assigned to Australia under the Kyoto Protocol may only be used for the purpose of complying with the Paris Agreement if the Paris Agreement itself expressly allows it (which it does not), or if there is a clear and affirmative decision taken by all Parties to the Paris Agreement to allow this practice,” the letter says.

The Morrison government has proposed to use up to 411 million in “surplus” credits from its 2020 emissions reduction target under the Kyoto, towards meeting its subsequent 2030 target under the Paris Agreement.

The proposal has attracted stiff criticism, both within Australia and abroad, and has been seen as an attempt from the Morrison government to simply shortcut its way to meeting the 2030 target, rather than taking substantive action to reduce Australia’s greenhouse gas emissions.

Representatives from several countries, including the powerful European Union negotiating bloc, have argued that use of the leftover Kyoto units would undermine the environmental integrity of the Paris Agreement, and would reduce the amount of emissions reductions achieved by 2030 by as much as 25 per cent.

Currently, Australia is the only country that is attempting to use “overachievement” under the Kyoto Protocol to meet its Paris Agreement target, and it failed to win support for the plan at the COP25 climate talks held in Madrid late last year.

“In trying to find sneaky ways to emit more, we’re not only cheating the world, but we’re also cheating ourselves. The recent bushfires brought that home in the most tragic way. Cheaters can’t convince others to play by the rules, nor to do more of what’s necessary to avoid dangerous climate change.” Dean Bialek, a former Australian diplomat, and negotiator for the Paris Agreement told RenewEconomy.

“World leaders know that this year’s COP26 must be the launching pad for a new push that halves emissions by 2030 en route to net zero by 2050. Australia’s antics go in the opposite direction.”

The academics said that for any country to be able to use the Kyoto-era permits to meet targets under the Paris Agreement, an express agreement amongst all countries would have to be drawn up and included within the rules of the Paris Agreement.

Because there is no clear consensus amongst countries on the Kyoto carryover, after negotiations broke down at the last round of UN climate talks in Madrid, the group of legal academics warned that there would be no legal basis for any country to unilaterally decide that it could use the surplus units under the Paris Agreement, and doing so would set a dangerous example.

“This sets a dangerous precedent that might lead other countries to exploit loopholes or reserve their right not to comply with the Paris Agreement, in turn increasing the already-significant gap between the aggregate effect of countries’ emission reduction targets and the level of reductions required to achieve the temperature goals in the Paris Agreement,” the letter says

“The IPCC has already made clear that a global halving of emissions by 2030 is required to be on track to limit warming to the 1.5°C limit, so a ratcheting up of Australia’s 2030 target is needed rather than efforts to water down Australia’s commitments.”

The academics point to two key issues for the Morrison government on the matter of the Kyoto carryover. Firstly, the “Doha Amendment” which extends the Kyoto Protocol to 2020 has not yet officially entered into force, and as such any “surplus” from that period does not yet officially exist.

Secondly, the academics note that countries had previously agreed, in 2015, that Kyoto-era units “shall be cancelled” when the Kyoto protocol comes to an end. This would prevent the units being carried over into the Paris Agreement, which is an entirely separate treaty.

“Use of Kyoto carryover for achieving Paris targets was never contemplated during Paris negotiations, it was not referred to at all in the Paris Agreement, and there is no consensus now among Paris signatories to allow it. There are many countries very disturbed by Australia’s attempts to create new loopholes for itself, quite obviously because we don’t have the policies in place to meet our already-weak 2030 target. It’s just plain cheating,” Bialek added.

The academic’s letter follows the similar conclusions of the research group ClimateAnalytics and which were published in a report by the Australia Institute, which also found that there was no legal or moral basis for the use of the excess Kyoto units under Paris.

Last year’s UN climate talks ran substantially overtime, as countries attempted to find a resolution to the issue of leftover Kyoto protocol units. Australia was criticised for damaging its international reputation over the issue, that was ultimately left unsolved. Unable to find a consensus position, countries will re-visit the issue at the next round of talks to be held in Glasgow at the end of the year.