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International public administrationInternational public administration

International agreements affecting public International agreements affecting public policy and administrationpolicy and administration

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Public policy and administrative reforms Public policy and administrative reforms may be introduced as a result of may be introduced as a result of international agreements among states international agreements among states

These are often drawn up under the These are often drawn up under the auspices of an International Governing auspices of an International Governing Organisation such as the IMF, WTO, Organisation such as the IMF, WTO, WHOWHO

Entry into agreement is referred to as Entry into agreement is referred to as accession, and the state which enters accession, and the state which enters the Agreement becomes a `signatory’ or the Agreement becomes a `signatory’ or `party`party’ ’

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The agreement once entered or acceded The agreement once entered or acceded to, imposes obligations on the signatory to, imposes obligations on the signatory governments - they are then bound to governments - they are then bound to implement its provisionsimplement its provisions

The Agreement is legally binding under The Agreement is legally binding under international lawinternational law

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Examples Examples WTO Government Procurement WTO Government Procurement

AgreementAgreement Framework Convention on Tobacco Framework Convention on Tobacco

ControlControl ASEAN Agreement on ASEAN Agreement on

Transboundary Haze Transboundary Haze Pollution Pollution International Convention for the International Convention for the

Regulation of Regulation of Whaling Whaling Vienna Convention for the Protection Vienna Convention for the Protection

of the of the Ozone Layer Ozone Layer OECD Convention on Combating OECD Convention on Combating

Bribery of Bribery of Foreign Public Officials Foreign Public Officials

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Why should a government become a Why should a government become a signatory to an agreement and be subject signatory to an agreement and be subject to the obligation to implement its to the obligation to implement its provisions since by doing so: provisions since by doing so:

a) it forfeits some of its independence a) it forfeits some of its independence and sovereigntyand sovereignty

b) in some case it may derive benefits b) in some case it may derive benefits from the agreement without being a from the agreement without being a signatory and without implementing its signatory and without implementing its provisions (can become provisions (can become a free rider)a free rider)

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First reasonFirst reason

For agreements that cover the flow of information, For agreements that cover the flow of information, resources, products and services between countriesresources, products and services between countries

A government may find that in being a signatory, it A government may find that in being a signatory, it

can avail itself of opportunitiescan avail itself of opportunities to further its interests to further its interests in other countriesin other countries

and if it is not a signatory, it may be denied those and if it is not a signatory, it may be denied those opportunitiesopportunities

The government will become a signatory if the The government will become a signatory if the benefits to be derived from such opportunities benefits to be derived from such opportunities outweigh the disadvantages in subscribing to the outweigh the disadvantages in subscribing to the obligations created by the agreementobligations created by the agreement

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E.g. E.g.

Why have governments acceded to the WTO’s Why have governments acceded to the WTO’s Government Procurement AgreementGovernment Procurement Agreement (GPA) since it (GPA) since it compels a government to allow access to foreign compels a government to allow access to foreign suppliers in procurement?suppliers in procurement?

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a) If a government becomes a signatory to the a) If a government becomes a signatory to the GPA, businesses within its jurisdiction gain GPA, businesses within its jurisdiction gain access to government procurement access to government procurement

contracts in contracts in other countries (reciprocal other countries (reciprocal advantage)advantage)

b) If the a government does not become a b) If the a government does not become a signatory to the GPA, it may find that signatory to the GPA, it may find that businesses within its jurisdiction may not be businesses within its jurisdiction may not be allowed to compete for procurement contracts allowed to compete for procurement contracts

in other countriesin other countries

c) The government will become a signatory c) The government will become a signatory so so long as allowing access to foreign long as allowing access to foreign suppliers is suppliers is politically acceptable and does politically acceptable and does not create social not create social disadvantages that disadvantages that outweigh the benefitsoutweigh the benefits

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Second reasonSecond reason

For agreements that bestow benefits even on For agreements that bestow benefits even on countries that do not accede (free-rider countries that do not accede (free-rider problem)problem)

A government may become a signatory and A government may become a signatory and refuse to be a free-rider since it may consider refuse to be a free-rider since it may consider that if it became a free rider it would give that if it became a free rider it would give reasons to other countries to become free reasons to other countries to become free riders so leading to the collapse of the riders so leading to the collapse of the agreementagreement

Providing the individual costs/advantges to Providing the individual costs/advantges to that government in implementing its that government in implementing its obligations do not outweigh the benefits to be obligations do not outweigh the benefits to be gained from the agreement gained from the agreement

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Refusal to accede to an agreement due Refusal to accede to an agreement due to costs outweighing the benefitsto costs outweighing the benefits

The agreement banning commercial whaling The agreement banning commercial whaling created by thecreated by the International Convention for International Convention for the Regulation of Whalingthe Regulation of Whaling (designed to preserve whale stocks in the (designed to preserve whale stocks in the future and preserve ecological balance in future and preserve ecological balance in the oceans)the oceans)has not been accepted by Norway and has not been accepted by Norway and Russia ( and in effect by Japan) Russia ( and in effect by Japan) since in those countries commercial whaling since in those countries commercial whaling is an important sector of the economyis an important sector of the economy

The individual cost/disadvantage in such The individual cost/disadvantage in such cases outweigh the overall benefits to be cases outweigh the overall benefits to be derived from the agreementderived from the agreement

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Making the agreementMaking the agreement The agreement is often reached after several The agreement is often reached after several

years of painstaking negotiation and years of painstaking negotiation and compromise in which a consensus is reachedcompromise in which a consensus is reached

It is often difficult to arrive at such It is often difficult to arrive at such agreements given the different interests and agreements given the different interests and values of the negotiating countries values of the negotiating countries

One reason is that developed and devoloping One reason is that developed and devoloping countries often have different interests and countries often have different interests and valuesvaluesE.g. the attempt to arrive at WTO agreement E.g. the attempt to arrive at WTO agreement on transparency in public procurement have on transparency in public procurement have stalled because certain developing countries stalled because certain developing countries object to full transparencyobject to full transparency

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Precursors to an agreementPrecursors to an agreement A fully fledged and legally binding Agreement A fully fledged and legally binding Agreement

is sometimes preceded by semi-formal is sometimes preceded by semi-formal cooperative arrangements between states, cooperative arrangements between states, which are not binding under international lawwhich are not binding under international law

These prior arrangements provide the These prior arrangements provide the precedents and the basis on which a fully precedents and the basis on which a fully fledged and binding agreement can be fledged and binding agreement can be negotiated:negotiated:

E.g. E.g.

ASEAN Agreement on Transboundary Haze ASEAN Agreement on Transboundary Haze Pollution,Pollution, 2002 was preceded by: 2002 was preceded by:

a) a) ASEAN Cooperation Plan on Transboundary ASEAN Cooperation Plan on Transboundary Pollution,Pollution,19951995b) Regional Haze Action Plan, b) Regional Haze Action Plan, 19971997

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Negotiating the agreementNegotiating the agreement Two stage negotiationsTwo stage negotiations

a) First stage - the negotiations to create a a) First stage - the negotiations to create a draft or set draft or set of recommendations that will of recommendations that will determine the ultimate content of the determine the ultimate content of the agreement agreement

b) Second stage - this may be followed by b) Second stage - this may be followed by negotiations to finalise the draft usually negotiations to finalise the draft usually involving senior policy makers and involving senior policy makers and government leaders of negotiating countriesgovernment leaders of negotiating countries

Once a government enters i.e. becomes a Once a government enters i.e. becomes a signatory to the agreement (accession), it is signatory to the agreement (accession), it is then bound by the provisions of the then bound by the provisions of the agreementagreement

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National legislation for National legislation for implementing the agreementimplementing the agreement After accession, a signatory government After accession, a signatory government

(party) then must draft an instrument (a (party) then must draft an instrument (a law or statute) containing the provisions law or statute) containing the provisions of the agreement - this is called the of the agreement - this is called the instrument of ratificationinstrument of ratification

The instrument will indicate how the The instrument will indicate how the government has interpreted the provisions government has interpreted the provisions

The instrument gives legal force to the The instrument gives legal force to the provisions within a national jurisdiction, provisions within a national jurisdiction, enabling them to implemented and enabling them to implemented and enforcedenforced

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Other legal instruments may be required Other legal instruments may be required to enable the provisions of the agreement to enable the provisions of the agreement to be implementedto be implemented

(e.g. the instrument of ratification may be (e.g. the instrument of ratification may be supplemented by a special implementing supplemented by a special implementing law law

to specify the rules, procedures and to specify the rules, procedures and definitions under which the agreement definitions under which the agreement can be implemented and enforced)can be implemented and enforced)

Other laws, that are directly and Other laws, that are directly and indirectly affected by the agreement, indirectly affected by the agreement, may have to be amendedmay have to be amended

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Structure of an international Structure of an international agreementagreement

An international agreement typically An international agreement typically consists of the following sections:consists of the following sections:

a) The preamblea) The preamble

b) General and specific obligationsb) General and specific obligations

c) Institutional frameworkc) Institutional framework

d) Financial mechanismsd) Financial mechanisms

e) Implementation mechanismse) Implementation mechanisms

f) Reservationsf) Reservations

g) Annexg) Annex

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1. Preamble1. Preamble

Preamble usually includes statements Preamble usually includes statements of circumstances or need prefixed by of circumstances or need prefixed by words such as words such as aware of, mindful of, aware of, mindful of, considering, taking into account, considering, taking into account, recognisingrecognising

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ExampleExample

Vienna Convention for the Protection of Vienna Convention for the Protection of the Ozone Layer:the Ozone Layer:

`̀The Parties to this Convention The Parties to this Convention

Aware of the potentially harmful impact Aware of the potentially harmful impact on human health and the environment on human health and the environment through modification of the ozone layerthrough modification of the ozone layer

Taking into account the circumstances Taking into account the circumstances and particular requirement of developing and particular requirement of developing countriescountries

Aware of the need for further research Aware of the need for further research and systematic observation’and systematic observation’

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Preamble cont.Preamble cont.

The preamble may also contain statements The preamble may also contain statements of objectives and guiding principlesof objectives and guiding principles

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ExampleExampleFrameworkFramework Convention on Tobacco ControlConvention on Tobacco Control (WHO. May 2003)(WHO. May 2003)ObjectiveObjectiveTo achieve a reduction in tobacco prevalence in To achieve a reduction in tobacco prevalence in order to protect present and future populations order to protect present and future populations from the devastating health, social and economic from the devastating health, social and economic consequences of tobacco consumption and consequences of tobacco consumption and exposure to environmental tobacco pollution exposure to environmental tobacco pollution Guiding principlesGuiding principles

As a result of the unique nature of tobacco As a result of the unique nature of tobacco products, normal trade practices are not products, normal trade practices are not applicableapplicable

The public has the right to be fully informed about The public has the right to be fully informed about the health consequences of using tobacco the health consequences of using tobacco productsproducts

All people have the right to a tobacco free All people have the right to a tobacco free environmentenvironment

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2. Section on obligations2. Section on obligations

The section on general obligations typically The section on general obligations typically include the following obligations include the following obligations

Drafting of national measures by signatory Drafting of national measures by signatory governments (the agreement may specify the governments (the agreement may specify the types of measures to be drafted) types of measures to be drafted)

Promotion of education, training and Promotion of education, training and awarenessawareness

Facilitating cooperation in scientific research Facilitating cooperation in scientific research and in other mattersand in other matters

Exchange of information with other signatory Exchange of information with other signatory governmentsgovernments

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ExampleExample

Framework Convention on Tobacco ControlFramework Convention on Tobacco Control - -

Signatory governments to introduce measures:Signatory governments to introduce measures:

To control the advertising of tobaccoTo control the advertising of tobacco

To restrict consumption of tobacco in public To restrict consumption of tobacco in public placesplaces

To require strong and visible health warnings To require strong and visible health warnings on tobacco productson tobacco products

To implement crop substitution for economies To implement crop substitution for economies heavily dependent on tobacco and promote heavily dependent on tobacco and promote alternative viable economic activities for alternative viable economic activities for tobacco growerstobacco growers

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3. Section on institutional 3. Section on institutional frameworkframework

International agreements may contain a section International agreements may contain a section covering the creation of an institutional covering the creation of an institutional framework, the most important parts of which are: framework, the most important parts of which are:

a) The Conference of Partiesa) The Conference of Parties

b) Secretariatb) Secretariat

c) Scientific advisory committees and working c) Scientific advisory committees and working groupsgroups

d) Implementation Committeed) Implementation Committee

The institutional framework may form part of a The institutional framework may form part of a relevant IGO or may lead to the creation of a new relevant IGO or may lead to the creation of a new IGOIGO

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The institutional framework is designed to:The institutional framework is designed to:

a) monitor implementation on the basis of a) monitor implementation on the basis of reports reports surveys, and observationssurveys, and observations

b) make adjustments to the agreement when b) make adjustments to the agreement when necessarynecessary

c) facilitate research, exchange of c) facilitate research, exchange of information etcinformation etc

d) to facilitate dispute settlement, and d) to facilitate dispute settlement, and identify non-compliance and take necessary identify non-compliance and take necessary actionaction

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4. Section on financial 4. Section on financial mechanismsmechanisms Implementing an international agreement Implementing an international agreement

may be financially costly especially to may be financially costly especially to developing countriesdeveloping countries

The agreement often contains provisions The agreement often contains provisions for the creation of fundsfor the creation of funds toto assist assist developing countries developing countries to make the economic, technological and to make the economic, technological and organizational changes which are required organizational changes which are required and to finance the monitoring of the and to finance the monitoring of the implementation of the agreementimplementation of the agreement

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5. Section on implementation 5. Section on implementation mechanismsmechanisms

International agreements often contain a International agreements often contain a section which stipulates what signatory section which stipulates what signatory governments are required to do in governments are required to do in implementing the agreementimplementing the agreement

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The implementation mechanism laid down in The implementation mechanism laid down in the agreement may includethe agreement may include

a) The types of national legal instruments a) The types of national legal instruments by which by which the agreement will be the agreement will be implementedimplemented

b) The on-going reporting arrangements to b) The on-going reporting arrangements to which which signatory governments must signatory governments must followfollow

c) The evaluation of the reports by the c) The evaluation of the reports by the Conference Conference of Partiesof Parties

d) Enforcement and sanction arrangements d) Enforcement and sanction arrangements in the in the case of non-compliancecase of non-compliance

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d) d) How disputes between signatory How disputes between signatory governments governments or between a signatory government and or between a signatory government and Conference of Parties can be settled Conference of Parties can be settled

e.g. conciliation and arbitration procedures e.g. conciliation and arbitration procedures or recourse to an international courtor recourse to an international court

(question whether dispute settlement (question whether dispute settlement procedures should be mandatory or procedures should be mandatory or optional)optional)

e) What actions are to be taken, if any, in the e) What actions are to be taken, if any, in the event of non-complianceevent of non-compliance

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Section on reservationsSection on reservations

Individual signatory governments may Individual signatory governments may insert reservations into a convention which insert reservations into a convention which exempts them from certain provisions (opt exempts them from certain provisions (opt outs)outs)

AnnexAnnex List governments which are signatories, List governments which are signatories,

lists reservations, explains technical and lists reservations, explains technical and legal terms, and may specify arbitration legal terms, and may specify arbitration proceduresprocedures

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Monitoring the implementation of Monitoring the implementation of the agreementthe agreement It is crucial to monitor the It is crucial to monitor the

implementation of an international implementation of an international agreement to determine:agreement to determine:

a) Extent of compliancea) Extent of compliance

b) Appropriate action in response to b) Appropriate action in response to non-compliancenon-compliance

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Monitoring activitiesMonitoring activities Scrutinise and determine adequacy of Scrutinise and determine adequacy of

nationalnational legal instruments to implement legal instruments to implement the agreement by Implementation the agreement by Implementation Committee and Conference of PartiesCommittee and Conference of Parties

Submission of regular reports from Submission of regular reports from signatory governments on progress of signatory governments on progress of implementation and on actions taken in implementation and on actions taken in dealing with non-compliancedealing with non-compliance

Assessment of reports by Implementation Assessment of reports by Implementation Committee and Conference of PartiesCommittee and Conference of Parties

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On-site visits/observations on a yearly or On-site visits/observations on a yearly or regular basis involving discussions with regular basis involving discussions with relevant government leaders and policy relevant government leaders and policy makers and examination of necessary datamakers and examination of necessary data

On-site questionnaire to be completed by On-site questionnaire to be completed by relevant agency of governmentrelevant agency of government

Discussion with representatives of `civil Discussion with representatives of `civil society’ combined with questionnairesociety’ combined with questionnaire

Assessment of observation reports, survey Assessment of observation reports, survey results, and evidence submitted by `civil results, and evidence submitted by `civil society’ by Implementation Committee and society’ by Implementation Committee and Conference of PartiesConference of Parties

Conference of Parties to determine Conference of Parties to determine amendments to the agreement when amendments to the agreement when necessarynecessary

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Enforcement action in case of non-Enforcement action in case of non-compliancecompliance

IGO informs other signatory governments IGO informs other signatory governments of defaulting governmentof defaulting government

IGO withholds or suspends aid IGO withholds or suspends aid

Signatory governments apply sanctions to Signatory governments apply sanctions to defaulting government (especially when defaulting government (especially when agreement affects exchange of goods and agreement affects exchange of goods and services) services)

IGO suspends membership of defaulting IGO suspends membership of defaulting governmentgovernment