Professor Tim Stephens BA (Hons) LLB (Hons) Syd MPhil Cantab PhD Syd
Professor of International Law

3 March 2020
The Hon Scott Morrison MP, Prime Minister
The Hon Angus Taylor MP, Minister for Energy and Emissions Reduction
Senator the Hon Marise Payne, Minister for Foreign Affairs
The Hon Christian Porter MP, Attorney-General
By email
Dear Prime Minister and Ministers,
Following media reports both during and in the aftermath of the 25th meeting of
the Conference of the Parties to UN Framework Convention on Climate Change
in Madrid last December, and after further consideration and discussion of the
issue in academic circles this year, we are compelled to convey our views
regarding the Government’s proposal to use “carryover units” or “credits” from the
first and second commitment periods under the Kyoto Protocol to assist Australia
in meeting its emissions reduction obligations under the Paris Agreement.
Our considered view is that the proposed use of these “Kyoto credits” to meet
targets under the Paris Agreement is legally baseless at international law.
The Kyoto Protocol and the Paris Agreement are entirely separate treaties.
There is no provision in the Paris Agreement that refers to the Kyoto Protocol,
nor to the units established under it.
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.
It is clear that no such consensus exists. Senior Australian government officials
acknowledged in a Senate Estimates Hearing on 21 October 2019 that there was
no other country intending to use “Kyoto carryover” to assist in meeting targets
under the Paris Agreement. In addition, 32 governments declared in the “San
Jose Principles for High Ambition and Integrity in International Carbon Markets”

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 in December 2019 that any use of Kyoto units and allowances in the context of
the Paris Agreement should be prohibited.
There are further significant legal obstacles to Australia’s proposed use of socalled “carryover” derived from projected over-achievement on targets under the
Kyoto Protocol.
First, the Doha Amendment to the Kyoto Protocol that created the second
commitment period (for 2013 to 2020) is not in force and may not enter into force
prior to the expiry of the second commitment period at the end of this year. If the
Doha Amendment fails to enter into force, the assigned amount units (AAUs)
envisaged to be issued to Australia for compliance with its target in the second
commitment period will never materialise, leaving Australia without two-thirds of
the 411 MtCO2-e in carryover that the Department for Energy & the Environment
referenced in its “Australia’s emissions projections 2019” report.1
Second, we recall that a decision was taken in 2015 by the Parties to the Kyoto
Protocol that any Kyoto units not used for compliance with targets under the
second commitment period “shall be cancelled”.2 In joining the consensus on this
decision, the Australian Government accepted that any Kyoto units remaining
after compliance with targets under the second commitment period would never
be used again in the absence of a third commitment period under the Kyoto
Protocol.
Finally, we note recent suggestions by the Minister for Energy and Emissions
Reduction that Australia will only use Kyoto carryover credits “if we have to”.3
Current analyses suggest that Australia is not on track to meet its target for 2030,
with recent projections from the then Department of the Environment and Energy
estimating that Australia’s emissions will be at 511 MtCO2-e in 2030, which is
only 16 per cent below emissions in 2005.
It follows that any expression of an intention or potential reliance on invalid Kyoto
allowances or credits for meeting Paris Agreement targets conveys a message to
the world that Australia wishes to reserve the right to avoid a significant
proportion of the mitigation effort needed to meet its 2030 target under the Paris
Agreement.

1

https://www.environment.gov.au/climate-change/publications/emissions-projections2019.
2
Decision 3/CMP.11, Annex 1, paragraph 14 [as contained in document
FCCC/KP/CMP/2015/8/Add.1], which, inter alia, amended paragraph 36 of the annex to
Decision 13/CMP.1.
3
https://www.skynews.com.au/details/_6125086905001.

 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 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.
Bearing in mind the issues raised above, we consider it important that Australia
urgently clarify its position in relation to Kyoto carryover, both to ensure that the
Government is not seen as advocating positions that are plainly inconsistent with
international law, and to avoid any further damage to Australia’s reputation.
A clear statement that Australia categorically rules out the use of Kyoto carryover
allowances or credits for Paris Agreement compliance, and is committed to
“meeting and beating” its targets through real mitigation effort, would help to build
confidence in Australia’s contribution to the global effort, and in turn encourage
other governments to abide by their own commitments. It would also serve to
clear diplomatic uncertainties surrounding negotiations on broad rules for carbon
markets pursuant to Article 6 of the Paris Agreement, and help to build
momentum for operationalisation of the Paris Agreement and success at COP26
in Glasgow.
We stand ready to engage with the Government on this issue, and look forward
to a clarification of Australia’s position in the very near future.
Yours faithfully,
Professor Tim Stephens, Professor of International Law, University of Sydney
Law School, University of Sydney
Professor Anthony Cassimatis AM, Professor of Law, TC Beirne School of
Law, University of Queensland
Professor Rosemary Lyster, Professor of Climate and Environmental Law,
University of Sydney Law School, University of Sydney
Professor Jan McDonald, Professor of Environmental Law, Faculty of Law,
University of Tasmania
Associate Professor Jeff McGee, Associate Professor in Climate Change,
Marine and Antarctic Law, Faculty of Law, University of Tasmania

 Professor Jacqueline Peel, Professor of Law, Melbourne Law School,
University of Melbourne
Professor Donald R Rothwell, Professor of International Law, ANU College of
Law, Australian National University
Professor Ben Saul, Challis Professor of International Law, University of Sydney
Law School, University of Sydney
Professor Ana Vrdoljak, Professor of Law, Faculty of Law, University of
Technology, Sydney