You are a legal advisor in an Australian government department.

    November 2, 2022

You are a legal advisor in an Australian government department. The Minister heading
the department is concerned because a foreign representative recently told the
Minister at an international gathering of foreign officials that even if Australia did not
become a party to a treaty currently being negotiated, Australia might nonetheless be
bound by rules enshrined in the treaty. The Minister tells you that they have a vague
recollection of studying the Law of Treaties at university and that there was a treaty on
treaties that Australia was a party to. The Minister recalls that this treaty on treaties
provided that “a treaty does not create either obligations or rights for a third State
without its consent”.
The Minister asks for a detailed explanation of how, if at all, Australia might be bound
under international law by a rule set out in a treaty to which Australia is not a party,
and how Australia might avoid being bound by such an international legal obligation.
The Minister also has a vague recollection of things called jus cogens and erga omnes
obligations and asks whether these might be relevant. Your explanation should include
references to relevant judicial decisions and relevant secondary sources on
international law.

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