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Course 2018-2019 a.y.

20614 - LAW AND POLICY MAKING

PPA
Department of Law

Course taught in English


Go to class group/s: 24

PPA (6 credits - II sem. - OB  |  IUS/13)
Course Director:
ROGER MICHAEL O'KEEFE

Classes: 24 (II sem.)
Instructors:
Class 24: ROGER MICHAEL O'KEEFE


Prerequisites

There are no formal prerequisites for the course. Students wishing to obtain a useful background familiarity with public international law are advised to read the following concise introduction: Vaughan Lowe, International Law (Oxford University Press 2007).


Mission & Content Summary
MISSION

International legal agreements, better known as treaties, are regularly relied on in today's world as vehicles for the cooperative advancement of the public policy objectives - including the trade, investment, and other economic objectives - of states and international organizations. Through an outline and analysis of the different legal, practical, and policy aspects of the negotiation and implementation of treaties, the course aims to equip students to understand, appreciate critically, and engage practically with this phenomenon. The emphasis is largely but not exclusively on trade agreements, especially those concluded between the European Union (EU) and non-member states.

CONTENT SUMMARY

Introduction

  • The concept of a treaty, treaties versus non-binding international agreements, capacity under international law to conclude treaties, multilateral (universal and regional) and bilateral treaties, the basic rules of international law regarding observance of treaties
  • Treaties versus non-binding international agreements: which and why?

Negotiation of treaties in law, practice, and policy

  • Negotiation and conclusion of treaties in international law
  • Impact assessment studies and the decision to open treaty negotiations
  • Choosing and preparing negotiators: the necessary skill-set
  • Legal authority to negotiate and conclude treaties: a comparative survey (different states, EU)
  • Executive, legislature, and the negotiation and conclusion of treaties: the influence on negotiations of the ratification procedure
  • Involving stakeholders in the negotiation process
  • Confidentiality versus publicity of negotiations
  • Differences in approaches to negotiation: universal versus regional versus bilateral treaties, treaties between states and between states and international organizations
  • Differences in approaches to negotiation: trade, investment, and other commercial treaties versus human rights and other humanitarian treaties
  • Negotiating treaties between parties of different levels of economic development
  • Negotiating treaties between parties with different traditions of the rule of law
  • Integrity versus participation: constructive textual ambiguity
  • Integrity versus participation: taking textual account of national law
  • Integrity versus participation: reservations to treaties
  • Shaping policy preferences infra legem: provision for treaty bodies and guidelines
  • Incorporating compliance and dispute-settlement provisions

Implementation of treaties in law, practice, and policy

  • The role of national law in treaty implementation: drafting primary and secondary legislation
  • The role of the rule of law and good governance in treaty implementation
  • The role of financial resources in treaty implementation
  • The role of human resources in treaty implementation
  • The role of culture in treaty implementation

Intended Learning Outcomes (ILO)
KNOWLEDGE AND UNDERSTANDING
At the end of the course student will be able to...

Students should emerge from the course with a practical knowledge and understanding and a critical appreciation of the law, practice, and policy of the negotiation and implementation of multilateral and bilateral treaties. Specifically, they should:

  • be familiar with and understand the concept of a treaty, the difference between treaties and international agreements not governed by international law, the entities capable of concluding treaties, the distinction between multilateral and bilateral treaties and between universal multilateral and regional multilateral treaties, and the basic rules of international law on observance of treaties
  • understand and appreciate critically the choice between treaties and non-legal international agreements as vehicles for public policy
  • be familiar with the rules of international law on the negotiation and conclusion of treaties
  • understand and appreciate critically the role of impact assessment studies in the decision to open treaty negotiations
  • understand and appreciate critically the skill-set looked for and developed in the selection and preparation of treaty negotiators
  • be familiar with and appreciate critically which organs are vested in different states and international organizations with the power to negotiate and conclude treaties
  • be familiar with and appreciate critically debates over the respective roles of executives and legislatures in the negotiation and conclusion of treaties and the influence on negotiations of a parliamentary role in the ratification of treaties
  • be familiar with and appreciate critically the different means of involving stakeholders in the negotiation process
  • be familiar with and appreciate critically the choice between confidential and public negotiations
  • be familiar with and appreciate critically practical differences in approaches to negotiation as among universal, regional, and bilateral treaties and as between treaties between or among states and treaties between states and international organizations
  • be familiar with and appreciate critically practical differences in approaches to negotiation as between trade, investment, and other commercial treaties and human rights and other humanitarian treaties
  • be familiar with and appreciate critically the issues associated with the negotiation of treaties between parties of different levels of economic development
  • be familiar with and appreciate critically the issues associated with the negotiation of treaties between parties with different traditions of the rule of law
  • be familiar with and appreciate critically reliance on textual ambiguity to bridge differences between negotiating parties or other potential parties to a treaty
  • be familiar with and appreciate critically reliance on textual acknowledgment of national law to bridge differences between negotiating parties or other potential parties to a treaty
  • be familiar with and appreciate critically reliance on the availability of reservations to bridge differences between negotiating parties or other potential parties to a treaty
  • be familiar with and appreciate critically reliance on textual provision for treaty bodies and the development of guidelines as means of shaping policy infra legem
  • understand and appreciate critically choices as to textual provision for compliance and dispute-settlement provisions
  • understand and appreciate critically the role of national legislation in the implementation of treaties
  • understand and appreciate critically the role of the rule of law and good governance in the implementation of treaties
  • understand and appreciate critically the role of financial resources in the implementation of treaties
  • understand and appreciate critically the role of human resources in the implementation of treaties
  • understand and appreciate critically the role of culture in the implementation of treaties
APPLYING KNOWLEDGE AND UNDERSTANDING
At the end of the course student will be able to...

Make discerning, legally-informed policy choices on the use, negotiation, and implementation of treaties as vehicles for public policy.


Teaching methods
  • Face-to-face lectures
  • Case studies /Incidents (traditional, online)
  • Interactive class activities (role playing, business game, simulation, online forum, instant polls)
DETAILS

The case studies/incidents method of teaching involves live and online engagement with both ‘problem-style’ (i.e. practical) and ‘essay-style’ (i.e. reflective) questions. The interactive class activity involves participation in a simulated treaty negotiation.


Assessment methods
  Continuous assessment Partial exams General exam
  • Written individual exam (traditional/online)
  •     x
    ATTENDING AND NOT ATTENDING STUDENTS

    Assessment is by way of final written examination, in English, containing both ‘problem-style’ and ‘essay-style’ questions. A grade may not be declined after the results of the final examination have been posted.


    Teaching materials
    ATTENDING AND NOT ATTENDING STUDENTS

    Textbook

    There is no compulsory textbook for the course.

    Other teaching materials

    A wide variety of primary and secondary materials, available online, will be referred to. There is no need for students to purchase any of these materials. Secondary materials include the following:

    • Duncan Hollis (ed.), The Oxford Guide to Treaties (Oxford University Press 2012)
    • Anthony Aust, Modern Treaty Law and Practice (Third edition) (Cambridge University Press 2013)
    • Malgosia Fitzmaurice and Olufemi Elias, Contemporary Issues in the Law of Treaties (Eleven International Publishing 2005)
    • Alan Boyle and Christine Chinkin, The Making of International Law (Oxford University Press 2007)
    • Barbara Koremenos, The Continent of International Law: Explaining Agreement Design (Cambridge University Press 2016)
    • Howard Raiffa, John Richardson and David Metcalfe, Negotiation Analysis: The Science and Art of Collaborative Decision Making (Harvard University Press 2007)
    • Ho-Won Jeong, International Negotiation: Process and Strategies (Cambridge University Press 2016)
    • Holger Janusch, ‘The Breakdown of International Negotiations. Social Conflicts, Audience Costs, and Reputation in Two-Level Games’ (2016) 21 International Negotiation 495–520
    • David Stasavage, ‘Open-Door or Closed-Door? Transparency in Domestic and International Bargaining’ (2004) 58 International Organization 667–703
    • Ivor Roberts (ed.), Satow’s Diplomatic Practice (Seventh edition) (Oxford University Press 2017)
    • Andrew F Cooper, Jorge Heine and Ramesh Thakur, The Oxford Handbook of Modern Diplomacy (Oxford University Press 2013)
    • Jeffrey L Dunoff and Mark A Pollack (eds), Interdisciplinary Perspectives on International Law and International Relations: The State of the Art (Cambridge University Press 2013)
    • Abram Chayes and Antonia Handler Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (Harvard University Press 1998)
    • Abram Chayes and Antonia Handler Chayes, ‘On compliance’ (1993) 47 International Organization 175–205
    • Scott, ‘Beyond “Compliance”: Reconceiving the international law–foreign policy dynamic’ (1998) 19 Australian Yearbook of International Law 35–48
    • JG Merrills, International Dispute Settlement (Sixth edition) (Cambridge University Press 2017)
    Last change 09/05/2018 18:06