ACTA to Be Signed – But Can it Enter into Force?

Sean FlynnIt has been reported in the global press this week that ACTA will be signed October 1 in Japan.  But that does not mean that ACTA actually goes into effect.

ACTA Article 40 states that the “Agreement shall enter into force thirty days after the date of deposit of the sixth instrument of ratification, acceptance, or approval as between those Signatories that have deposited their respective instruments of ratification, acceptance, or approval.” Although six ratifications is a pretty low threshold for an agreement with 36 parties to the negotiation, it is far from clear that this agreement will get even that.

US Constitutional Problem

In the US, there is no plan to constitutionally ratify the agreement. Indeed, this will likely be the main focus of the US signing statement. The document will be an argument to Congress that the executive can pass this agreement alone – legally binding the US to a trade agreement with no congressional authorization – because, according to the Executive, ACTA is fully consistent with current US law. This, the administration has long argued, is why the US can “implement” ACTA with no Congressional action.

This argument has fault logic. The regulation of intellectual property and of foreign trade through international agreements is an “Article 1” Congressional power. That means that the executive cannot bind the US to agreements in this area without congressional consent. The President lacks the authority to enter a “sole executive agreement” in this area, even if the agreement does no more that require the US to continue follow the contours of current US law. That is because the agreement purports to bind the US not to change its law, and changing US law in this area is a congressional power. This point has been made repeatedly by US law professors with no effective rebuttal. See Submission to USTR of 30 Law Professors, Sean Flynn, ACTA’s Constitutional Problem, editorial by Creative Commons founder Lawrence Lessig and Bush AAG Jack Goldsmith, article by Yale Law Professor Oona Hathaway and Berkeley Law Professor Amy Kapczynski, and Mike Masnick’s apt description of the issue.

It is worth noting that this is not a purely academic point. It is not true that, because of the constitutional infirmity, ACTA would have no legal effect if only signed by the President, and thus no harm no foul. In fact, if ACTA gets its six ratifications and goes into force with a US Presidential signature, then it could bind the US under international law. This triggers the possibility of trade sanctions for non-compliance with ACTA, even though Congress never entered into the agreement. Although this is true whether or not the agreement complies with US law, it is worth noting that is not uncontested that ACTA is entirely consistent with US law. A report to Senator Wyden, and an analysis by 75 U.S. law professors, concluded just the opposite. At minimum, it should be concerning that the arbiters of these questions of compliance under ACTA will be international bodies.

EU Parliamentary Problem

There are serious problems with the entry into ACTA in other countries as well. The EU represents 27 of the 37 parties to the ACTA negotiation, and it appears doubtful that any of them will join ACTA any time soon.

According to one source within the EU Parliament and some recent press accounts, the EU has no plans to sign the agreement on October 1.

Unlike in the US, the EU Commission is not asserting it can implement ACTA without parliamentary approval. The EU parliament has set a consent schedule to consider the issue.  But parliamentary approval is very much in question.

  • The EU Directorate General for External Policies’ report to the INTA committee in the EU Parliament (in a lengthy analysis with over 250 footnotes) advised that ACTA’s substance and process is not consistent with current EU law and “unconditional consent would be an inappropriate response from the European Parliament.”
  • Two law professor studies subsequently advised the EU Parliament that ACTA violates numerous EU Parliament resolutions on ACTA specifically, and on trade agreements more generally, including resolutions mandating transparent process norms, protection of European and international fundamental human rights, and the promotion of access to medicines in developing nations.
  • Ante Wessels from FFII reports that ACTA has to be ratified in all EU Member states to join. “It seems that one national parliament can kill ACTA in the whole EU,” he explained.
  • There is also a move in the EU to request a ruling from the European Court of Justice on whether ACTA is void as applied to the EU for a failure of the Commission to abide by EU law on the negotiation of foreign agreements.

DOA in Mexico

The outlook is similarly troublesome in Mexico.

  • In June, the Second Standing Commission of the Mexican Congress unanimously approved a resolution exhorting the Executive to not sign the Anti-Counterfeiting Trade Agreement (ACTA).
  • A subsequent statement explained that, if the agreement is signed, the agreement will not be ratified in the Senate, deeming it void according to the Mexican Constitution.  The statement tracked arguments made against the treaty by the EU Parliament. The Mexican Senate explained that the “process of negotiating this agreement violated the Law on Approval of Treaties on Economic Matters,” and that the substance “would violate the principle of the presumption of innocence… would be a limitation to the ‘universalization of internet access desirable in Mexican society’… and that it could lead to a censorship of internet content and therefore a restriction of freedom in its operation and neutrality.”
  • These votes were in non-binding resolutions or statements because the President had not yet signed the law. This time, the predicted vote against the agreement by the Mexican Senate will bind the executive, preventing Mexico from ratifying the agreement.

There is word that some in the Mexican Congress may reach out to EU parliamentarians to ask the EU to reject ACTA alongside Mexico.

Canada

The Canada Department of Foreign Affairs has stated that the Minister of International Trade will be in Japan this weekend to sign international agreements, presumably to include ACTA. But the statement is not very clear. http://tiny.cc/8zxpu

Switzerland

After some initial confusion in Switzerland, Patrick Durisch of the Swiss NGO The Berne Declaration reports that he was told by the Swiss government will not be signing ACTA this weekend. Durisch was told: “Switzerland will send an ambassador to Tokyo but that they do not intend to sign ACTA at this stage. They say they are in a process of ‘internal evaluation’ within the administration, which will also include our inputs regarding the agreement.”

The Others

I have seen no reports on the intentions of Australia, New Zealand, Japan, South Korea, Morocco, and Singapore.

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