May 162012
 

Today, a group of nearly 50 U.S. legal scholars sent an open letter to the Members of the Senate Finance Committee asking them to “exercise your constitutional responsibility to ensure that the Anti-Counterfeiting Trade Agreement (ACTA) is submitted to [Congress].” This note explains the legal and political context for the letter, including the mounting barriers to ACTA ever going into force as a binding international treaty.

[PRESS RELEASE:  Law Professors Declare Anti-Counterfeiting Trade Agreement Unconstitutional Without Congressional Approval]

[see also:  EFF Blog | Public Knowledge ACTA page | Margot Kaminski's TechDirt story]

The letter is the latest in a long series of exchanges between law professors, Senators and the Administration on the validity of the administration’s Constitutional claim that it can ratify the Anti-Counterfeiting Trade Agreement without the Congressional approval that normally accompanies any binding international trade agreement.

During the negotiation of ACTA, the Administration claimed that it could be ratified by a sole executive agreement order of the President (see written submission to Senate Finance, USTR ACTA signing statement). A sole executive agreement is a rare type of binding international agreement that can be entered through the sole executive authority of the President, without any Congressional role. Law professors have asserted in open letters and academic articles that this position has no merit. This included an open letter from two Harvard Law Professors published in the Washington Post, a submission to USTR from 30 Law Professors, and in numerous published articles .  Senator Ron Wyden, Chair of the Senate Finance Committee’s Trade Subcommittee, has been a vocal critic of the administration’s sole executive theory, demanding in letter after letterquestions of USTR, and in a proposed legislative amendment that the Administration submit ACTA to Congress for its approval. (See also, statement of Representative Issa).

The administration’s justification took an about face on March 6, 2012, when a letter to Senator Wyden from Department of State Legal Advisor Harold Koh refused to back USTR’s sole executive agreement theory.  Instead, Koh described ACTA as having received prior authorization of Congress by the 2008 PRO-IP Act.

The letter from a group of law professors released today challenges the reasoning in Koh’s letter, concluding that PRO-IP did not authorize ACTA and that Congressional approval of the final text of ACTA is necessary to bind the U.S. to the agreement.

The problem arises because, under our constitutional structure, Congress must approve the ratification of any international agreement governing issues relating to powers delegated to it by Article I of the Constitution, including the regulation of intellectual property and foreign commerce. The letter explains:

“The larger part of ACTA contains dozens of pages of new international law requirements on the shape and scope of domestic intellectual property enforcement legislation, including what types of infringement must be addressed through criminal law, when third party intermediaries may be civilly and criminally liable for infringement by others, and the scope of damages and other remedies that must be available for different classes of infringement. Regardless of whether ACTA requires changes in US law (many claim that it does), these are matters subject to the legislative power vested in Congress, not in the sole executive province of the President.”

The letter goes on to explain why the 2008 PRO-IP Act fails to delegate power to the President to ratify ACTA without further Congressional approval, as is normally required for trade agreements.

“First, the plain language of Section 8113(a) of the PRO-IP Act does not authorize USTR to bind the US to any international agreement. Rather, the section merely describes the purposes of a ‘Joint Strategic Plan against counterfeiting and infringement,’ to be coordinated among multiple agencies by the Intellectual Property Enforcement Coordinator (IPEC). The purposes of the Plan include ‘working with other countries to establish international standards and policies for the enforcement of intellectual property rights.’Nowhere in Section 8113 does the PRO-IP Act mention the negotiation of international agreements. Rather, subsection (f), which describes specific means for ‘enhancing enforcement efforts of foreign governments,’ requires only ‘programs to provide training and technical assistance to foreign governments for the purpose of enhancing the efforts of such governments to enforce laws against counterfeiting and infringement.’  Read in its context, the language cited by Koh as justifying ACTA does no more than require a multi-agency plan to provide technical assistance to foreign governments. Indeed, the cited passage is not addressed to USTR.”

The second major problem for the administration’s justification is that “the PRO-IP act cannot be an ex-ante authorization for ACTA because it was not temporally ex ante.” The letter explains:

“The ACTA negotiation began in 2007. PRO-IP was not passed until 2008, and was passed at a time Congress was being told that ACTA would be entered as a sole executive agreement – requiring no congressional approval at all. The administration did not seek, and Congress has not given, ex ante authorization to bind the US to ACTA.”

The letter thus concludes that “the Administration currently lacks a means to constitutionally enter ACTA without ex post Congressional approval.

ACTA Entry into Force in Doubt

The constitutional debate in the US is one component of the larger context casting increasing doubt that ACTA can ever go into force.

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[.]”

As implied in the text above, there are normally two steps to binding any country to an international agreement. First, the negotiating countries sign the agreement. This is normally done at the executive level, by whatever agency of government negotiated the agreement. The making of the treaty is then complete, but it does yet bind until a final ratification by each country. What process is required to ratify domestically is determined by local law – in the case of the US, by the Constitution. A country signals its ratification of ACTA by depositing an “instrument of ratification” (e.g. a copy of the legislative approval) with the host country, Japan. To date, no country has ratified ACTA.

Although six ratifications is a pretty low threshold for an agreement with over 30 parties to the negotiation (each EU member country counts as one ratification for purposes of final entry), it is increasingly dubious that ACTA will ever reach that number.

To begin with, only eight countries (United States, Australia, Canada, Korea, Japan, New Zealand, Morocco and Singapore) signed ACTA at the signing ceremony in Japan on October 1, 2011.

The EU later signed the agreement on behalf of its 22 member countries. But, after a winter of discontent in which hundreds of thousands of people took to the streets in protest, it appears increasingly likely that the EU parliament will reject the agreement.

The EU, unlike the US, is treating the agreement as a binding international agreement that must be ratified by its Parliament, not the executive (Commission) alone. The lead committee in charge of international treaties in the EU parliament is recommending ACTA’s rejection, as does its Rapporteur, and the most relevant voting block in the EU Parliament. Even the EU Commissioner in charge of ACTA appears resigned to its defeat. Indeed, some in Europe are now talking about whether the vote will be a landslide against ACTA rather than a simple rejection.

Switzerland is not part of the European Union and was a strong supporter of ACTA during the negotiation. But it was not among the original signing countries. It announced May 9 that it would delay signing ACTA in the face of the controversies in Europe and elsewhere over the agreement.

Australia signed ACTA but its ratification is in doubt as well. Australia, like the EU, is treating ACTA as a binding treaty that must pass parliament. The uncertainties in the US and EU are affecting the debate. In a legislative hearing earlier this month, the Chair of the oversight committee asked:

“CHAIR: To follow on directly from the last question, the information before the committee suggests that developing countries do not much like this and are not really engaged in it; that in the European Union there is a vote coming up in the European Parliament which would block out the implementation of ACTA in Europe; and that it is on hold in the United States. So my question is whether the government believes that it would be wise to proceed with ratification without knowing whether the European Union and the US are going to do likewise.”

Mexico has not signed ACTA, and appears unlikely to. The Second Standing Commission of the Mexican Congress unanimously approved a resolution exhorting the Executive to not sign ACTA in June 2011. 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. A recent statement of the US, Canada and Mexico on the Anniversary of NAFTA seemed to take for granted that Mexico would never enter the agreement formally, saying:

“The United States, Canada and six other countries signed the ACTA in October 2011. Mexico will continue to work on a comprehensive reform to its legal system to achieve the high standards pursued under the ACTA.”

In New Zealand, a “free ACTA” campaign (and its “publicacta” counterpart) drew the most protesters to the streets in a popular movement since activists forced the government to turn down nuclear weapons in the 1970s. Advocates on the ground doubt that New Zealand would go through the expense of ratifying ACTA unless they had to. In other words — they are unliekly to be first.

That leaves Canada, Korea, Japan, Morocco and Singapore as the only countries in which we don’t know of a significant obstacle to ratification to date. But even if all them ratify ACTA now, it would not be a sufficient number to bring the agreement into force. And it is still very unclear who, if anyone, is willing to be the first country to join this highly controversial agreement.

Resources:

Flynn, ACTA’s Constitutional Problem: The Treaty That Is Not a Treaty (Or An Executive Agreement), http://digitalcommons.wcl.american.edu/research/19/

article by Yale Law Professor Oona Hathaway and Berkeley Law Professor Amy Kapczynski, http://www.asil.org/insights110824.cfm

Eddan Katz & Gwen Hinze, The Impact of the Anti-Counterfeiting Trade Agreement on the Knowledge Economy: The Accountability of the Office of the U.S. Trade Representative for the Creation of IP Enforcement Norms Through Executive Trade Agreements, 35 YALE J. INT’L L. 24 (2009).

Techdirt story, http://tiny.cc/wxjac

 

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