infoJustice

In the fact sheet from USTR on ACTA, which appears to be the document that was being floated to cleared advisors as the “signing statement,” USTR points to four agreements (in addition to GATT) that justify its entry into ACTA as a sole executive agreement. Of these, it appears that only one of the agreements (a pre-TRIPS IP agreement with Hungary) may not have been sent to Congress for post-signature ratification. The other three were actually treaties ratified by the Senate.

The USTR fact sheet explains:

“The United States may therefore enter into and carry out the requirements of the Agreement under existing legal authority, just as it has done with other trade agreements. Such agreements include both broad trade pacts like the 1947 General Agreement on Tariffs and Trade, and agreements specifically addressing trade-related intellectual property rights, including those concluded with Ecuador, Hungary, Jamaica, and Latvia.”

I have not done sufficient research to analyze whether the Hungary agreement was claimed to be a sole executive agreement (i.e. no congressional authorization a priori or ex post) or whether it was actually a congressional-executive agreement authorized by Congress in advance or approved by legislation afterward. The other agreements were all clearly treaties sent for Senate confirmation.

It appears that USTR is avoiding the real issue of its constitutional authority to enter ACTA. It appears to be addressing whether implementing legislation changing US law is required by ACTA, rather than the constitutional question of whether Congressional authorization or consent is needed to bind the US to international agreements that fall within Congress’s Article I powers to regulate foreign commerce and to protect intellectual property.

The agreements it cites are:

Ecuador

http://tcc.export.gov/Trade_Agreements/All_Trade_Agreements/Equador_BIT_AG.asp

This agreement was submitted to the Senate as a treaty.

Hungary

http://tcc.export.gov/Trade_Agreements/All_Trade_Agreements/exp_005349.asp

This is a 1993, pre-TRIPS, IP agreement that appears to have been negotiated under fast track authority (since lapsed). It is not clear if this one was ever submitted to Congress for approval, as fast track required. I seems to contain the IP provisions of NAFTA, which later became TRIPS.

Jamaica
http://tcc.export.gov/Trade_Agreements/All_Trade_Agreements/exp_005434.asp

A treaty sent to the Senate for ratification.

Latvia

http://tcc.export.gov/Trade_Agreements/All_Trade_Agreements/exp_005848.asp

A treaty sent to the Senate for ratification.