ACTA to Be Signed – But Can it Enter into Force?
It has been reported in global press this week that ACTA will be signed October 1 in Japan. http://goo.gl/nC0PL But that does not mean that ACTA actually goes into effect. Indeed, there seems a decent chance it will not go into effect anywhere.
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 Signature will Raise ACTA’s Constitutional Problem
The US plans to sign the agreement with a low level USTR official. It is not clear whether this official will have the “full powers” required to bind the US under international law. But rumors are that the signing will come with a presidential statement. 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 without no congressional authorization – because, according to the Executive, ACTA is fully consistent with current US law. This, the administration has long argues, the US can “implement” ACTA with no Congressional action, http://infojustice.org/archives/3268.
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, of course, the agreement purports to bind the US not to change US 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, http://infojustice.org/archives/1166 , Sean Flynn, ACTA’s Constitutional Problem, http://digitalcommons.wcl.american.edu/research/19/, editorial by Creative Commons founder Lawrence Lessig and Bush AAG Jack Goldsmith, http://www.washingtonpost.com/wp-dyn/content/article/2010/03/25/AR2010032502403.html, article by Yale Law Professor Oona Hathaway and Berkeley Law Professor Amy Kapczynski, http://www.asil.org/insights110824.cfm, Mike Masnick’s apt description of the issue, http://tiny.cc/wxjac
EU not signing
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 and some recent press accounts, http://tinyurl.com/6dlewvz, 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. http://euwiki.org/NLE/2011/0167. 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.” http://infojustice.org/archives/4316.
- 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. http://infojustice.org/archives/5166
- 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. See http://tinyurl.com/3hv9tb3 (concluding that, to be valid under EU law, ACTA must be “be signed and concluded both by the EU and by all the Member States.”).
- 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. http://infojustice.org/archives/2939
Mexico may sign but likely dies in Senate
It is not yet clear whether Mexico will sign. 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). http://infojustice.org/archives/4038 . If the President does sign, the Senate seems poised to reject it because 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.” http://infojustice.org/archives/4587
Canada Likely to Sign; Ratification Process Unclear
The Canada Department of Foreign Affairs has stated that the Minister of International Trade will be in Japan this weekend to sign international agreements and suggests that Canada will in fact be signing ACTA this weekend. http://tiny.cc/8zxpu It is not clear that Canada needs to follow any additional ratification process after signing.
Switzerland not Signing
After some initial confusion with regard to the state of play in Switzerland, the latest information from a source knowledgeable about the government’s intentions is that Switzerland will send an ambassador to Tokyo but that they do not intend to sign ACTA yet. The government is apparently still in a process of internal analysis of the agreement.
New Zealand will sign but requires ratification
According to the New Zealand government, it will sign ACTA this weekend but will still hold it for a domestic ratification process, meaning it will not count as one of the six consents needed. The Government explained:
“Cabinet has formally approved New Zealand’s signature of ACTA. As is normal practice with international treaties, a separate decision to ratify ACTA will be made subsequently, the Minister said. This would require the Government to make some minor amendments to the Copyright Act 1994 and the Trade Marks Act 2002 and would be subject to the usual ratification process, including public consultation and scrutiny by Parliament.”
Australia signing but requires ratification
Australia is sending its Trade Minister and appears poised to sign the agreement. Kim Weatherall, a law professor in Australia covering ACTA and other trade issues, explains that Australia will still need to follow a parliamentary ratification process after signing – it is not following the “executive order” approach of the US.
I have seen no reports on the intentions of Japan, South Korea, Morocco, and Singapore. But if the above information is correct, all four would have to sign under the “executive agreement” model, in addition to the U.S. and Canada, for the 30 day count down to entry into force to take place this weekend. That seems unlikely.