Just when it looked like Australia had put the fractious ‘climate wars’ behind it, recent comments by Coalition leader, Peter Dutton, about our emissions reduction targets seem to have reignited the flames.
At the heart of the debate is Dutton’s assertion that the Albanese government ‘just have no hope of achieving the targets and there’s no sense signing up to targets you don’t have any prospect of achieving’. The Coalition leader has since said that while the opposition has an ‘absolute commitment to Paris and our commitment for net zero by 2050’, they’ll only make announcements about their preferred 2030 target ‘in due course’.
One question this raises is about the legality of this course of action given Australia’s international commitments as a party to the 2015 Paris Agreement. To answer that question, we first need a bit of background on the Paris Agreement and Australia’s obligations under that treaty.
Written by Professor Jacqueline Peel
Director, Melbourne Climate Futures
Professor of Law, Melbourne Law School
What is the Paris Agreement?
The Paris Agreement is the international framework agreed by virtually all countries around the world to address climate change and reduce emissions of climate-harming greenhouse gases (GHGs). Australia became a party to the Paris Agreement in November 2016 during the tenure of the Abbott Coalition government.
A key aim of the Paris Agreement is to ensure the globe does not exceed ‘safe’ levels of warming by staying ‘well below’ the threshold of 2°C of warming over pre-industrial levels and pursuing efforts to stick to no more than 1.5°C of warming (Art. 2.1).
The world’s most respected expert climate science body – the Intergovernmental Panel on Climate Change (IPCC) – has advised that meeting the Paris Agreement’s temperature goal requires immediate and deep cuts in global GHG emissions. Emissions need to reach ‘net zero’ by 2050 to keep to a 1.5°C pathway, but that can only be achieved if global emissions reduce by at least 43 percent from 2019 levels by 2030, 60 percent by 2035 and 69 percent by 2040. Under the international climate regime, rich, developed countries, like Australia, are supposed to shoulder more of the burden of those emissions cuts because these countries have contributed the most to the problem of climate change over time.
What are Australia’s obligations under Paris?
Under the Paris Agreement, country parties make pledges about the emissions reductions they’ll undertake in their countries via so-called ‘Nationally Determined Contributions’ or NDCs. These NDCs are essentially five-year plans about how a particular country will address climate change. Countries are able to set their own targets and objectives in NDCs. The Paris Agreement requires countries to prepare, communicate and maintain NDCs (Art. 4.2), and to update them every five years (Art. 4.9), but it doesn’t penalise countries if they fail to meet the targets pledged in their NDCs.
Australia’s current NDC, which was updated by the Albanese Labor government in 2022, includes a nation-wide emissions reduction target for Australia of a 43-percent reduction on 2005 levels of emissions by 2030. This target is also legislated in the Climate Change Act 2022, along with a target to reach net zero emissions by 2050. Our 2030 target is a ‘middle of the road’ target internationally – for example, Canada is aiming for a 40–45-percent reduction below 2005 levels by2030, the US has specified 50–52 percent below 2005 levels by 2030, and the EU is aiming toreduce net GHG emissions by at least 55 percent from 1990 levels by 2030. All also have 2050 net zero targets.
Last year marked the conclusion of the first ‘global stocktake’ of progress under the Paris Agreement. The headline finding was that countries are not on track through their current NDCs and policies to meet the Paris Agreement’s temperature goals. Safeguarding our climate future requires stronger action to address emissions.
The Paris Agreement provides that the outcomes of the global stocktake ‘shall inform’ parties in updating their NDCs (Art. 14.3). NDCs for the period to 2035 are due to be submitted by countries in early 2025 and the Australian government is presently working on preparing our 2035 NDC. Under the Climate Change Act, the government is advised on new targets by the Climate Change Authority, which will finalise its recommendations later this year. Based on the evidence the Authority has considered so far, this suggests a 2035 emissions reduction target in the range of 65–75 percent below 2005 levels is needed for Australia.
So, what would happen if the Coalition came to power at the next federal election, due by May 2025? From Dutton’s statements, it seems the Coalition would seek to wind back Australia’s 2030 target and NDC, and most probably submit a 2035 NDC with a weaker emissions reduction target than the current 43-percent reduction pledge. At the same time, the Coalition says it would remain committed to the Paris Agreement and to a net zero by 2050 target for Australia.
Is this legal under the Paris Agreement?
Any action by a future Coalition government to water down our 2030 target and NDC, or to submit an NDC for 2035 with a target that’s weaker than our current pledges, would go against the spirit, if not the letter, of the Paris Agreement, and – in some circ*mstances – could constitute a breach of those obligations.
While Australia has every right to determine its own emissions reduction targets under the Paris Agreement, there are clear expectations of increasing ambition in NDCs over time and rules to prevent backsliding.
On raising ambition, Articles 4.3, 4.4 and 4.11 are the key provisions.
Article 4.3 provides:
Each Party’s successive nationally determined contribution will represent a progression beyond the Party’s then current nationally determined contribution and reflect its highest possible ambition, reflecting its common but differentiated responsibilities and respective capabilities, in the light of different national circ*mstances (emphasis added).
In legal terms, that language doesn’t create a strict legal obligation for parties to have successive NDCs that are more ambitious than previous ones, but it does create a strong expectation that countries will follow this course of action. Submitting a new NDC (whether for 2030 or 2035) that watered down our current emissions reduction commitments might not formally breach the Paris Agreement, but it would go against the spirit of the commitments. More broadly, if a rich developed country like Australia backslides in this way it provides a licence for other countries to start doing the same, undermining the Paris Agreement goals as a whole.
Article 4.4 makes clear the higher expectations on developed countries though not in language that is legally binding. It provides:
Developed country Parties should continue taking the lead by undertaking economy- wide absolute emission reduction targets.
Finally, Article 4.11 addresses the option a party has to ‘adjust’ its existing NDC ‘at any time’. While such adjustments are permitted, they can only be ‘with a view to enhancing its level of ambition’. In other words, ‘backsliding’ on your current emissions targets is not permitted.
Even though the language of these provisions is not in directive terms, there’s still the chance that if a dispute was taken to an international court in respect of Australia’s actions the court might hold the country to a higher standard and make a finding that Australia is in breach of its international obligations. In recent international climate litigation, like the European Court of Human Rights decision in the ‘Swiss grandmas’ case and the advisory opinion of the International Tribunal of the Law of the Sea on the obligations of countries to address greenhouse gas emissions contributing to marine pollution, courts are demonstrating they are prepared to hold countries to account where their climate policies are found to be lacking.
The language of the Paris Agreement is more directive when it comes to the obligation to submit successive NDCs. Article 4.2 is clear that each party ‘shall prepare, communicate and maintain successive nationally determined contributions that it intends to achieve’ and ‘shall pursue domestic mitigation measures, with the aim of achieving the objectives of such contributions’. This is legally binding language. If a subsequent Coalition government was to fail to ‘prepare, communicate and maintain’ successive NDCs (e.g., for 2035, 2040, 2045 and so on) this would be in breach of Australia’s Paris Agreement obligations.
Is the Coalition going to pull Australia out of the Paris Agreement?
Some of Dutton’s comments have suggested that a Coalition government might walk away from the Paris Agreement (though this was later clarified and it seems an ‘absolute commitment’ to Paris remains Coalition policy).
If a Coalition government wanted to pull out of Paris (as the US government did under Trump before the Biden administration rejoined the agreement) there is the scope to do so under Article 28.
This provision says a country party may ‘withdraw’ from the Paris Agreement ‘[a]t any time after three years from the date on which this Agreement has entered into force for a Party’. The Paris Agreement entered into force for Australia in November 2016 so, technically, the country could now seek to withdraw. It could also withdraw from the Paris Agreement’s parent treaty – the United Nations Convention Framework Convention on Climate Change – which would also have the effect of withdrawing the country from Paris.
Either would be a ‘nuclear option’ (no pun intended) and put Australia firmly in climate laggard territory along with other non-parties like Iran, Libya and Yemen.
