On 15 January 2024, the Secretary of the Department of Climate Change, Energy, the Environment and Water met with their Japanese Minister for Foreign Affairs and signed a "Memorandum for the Development and Commercialization of Climate and Energy Friendly Technologies". The Memorandum aims to promote the development of environmentally friendly technologies
and introduce measures to reduce the carbon footprint of cars newly produced in their respective territories.
Excerpts from the Memorandum: Memorandum for the Development and Commercialization of Climate and Energy - Friendly Technologies between Australia and Japan
Done at Tokyo on 15 January 2024
The States Parties to the present Memorandum,
Recognising the adverse impacts of climate change,
Considering the importance of free trade in the exchange of low - carbon technologies, Have agreed as follows:
Article 1
To reduce tariffs and other restrictive policies on the trade of low - emission cars between the two countries.
Article 6
In the event of a dispute between the Parties concerning the interpretation or application of this Memorandum, the Parties shall seek a settlement of the dispute through negotiation or arbitration.
Article 10
This Memorandum shall enter into force once both Parties have consented to be bound by it. Australian media report that "the Memorandum is legally binding on Australia as of the time of signature."
You are an in-house counsel for a large Australian carmaker concerned that the Memorandum would have a significant impact on its operations. You are asked to provide the head of the legal department with an informed and legally substantiated opinion as to the validity of these media reports.
Note: This question contains several elements that lack specificity. You are encouraged to address the range of possibilities that
this open question raises.
Please provide your answer in the form of an essay.
1. Clarify whether this Memorandum constitutes a treaty under public international law, and does the Vienna Convention on the
Law of Treaties (VCLT) apply? Consider all relevant factors for determining what constitutes a validly constructed treaty.
2. Assess the terms of the Memorandum to determine its legally binding nature, and the relevance of the available clauses.
3. Consider whether the Memorandum creates legal obligations for Australia at the time of its signature.
4. Consider any possible grounds for invalidity, and any related questions of compliance with Australia's domestic processes.
You should use sources of legal authority, including scholarly and primary international law sources to support your arguments and legal propositions, as per the instructions below.