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ACTA's Constitutional Problems: The Treaty is Not a Treaty

Sean M. Flynn

American University - Washington College of Law; Program on Information Justice and Intellectual Property

November 1, 2011

American University International Law Review, Vol. 26, No. 3, p. 903, 2011
American University, WCL Research Paper No. 2012-04

On the eve of the United States’ entry into the Anti-Counterfeiting Trade Agreement (“ACTA”), there is considerable confusion as to just what legal effect the agreement will have. In written answers to Senator Ron Wyden, the United States Trade Representative (“USTR”) went to lengths to describe ACTA as non-binding, asserting that “ACTA does not constrain Congress’ authority to change U.S. law,” and that it would operate only as an “Executive Agreement” that “can be implemented without new legislation.” But European negotiators have described the agreement to their legislature in very different terms, asserting that ACTA is “a binding international agreement on all its parties, as defined and subject to the rules of the Vienna Convention on the Law of Treaties (1969).”

ACTA is not a binding international agreement under U.S. law. The U.S. Constitution describes a limited number of ways in which the United States can be bound to international law. The subjects of ACTA — the regulation of intellectual property and domestic and foreign commerce — are Article I powers under the U.S. Constitution, meaning they can be regulated only with congressional participation. Yet, according to the USTR, ACTA will be entered by the United States as a sole executive agreement without congressional authorization or approval. Because the entry of ACTA unilaterally exceeds the President’s constitutional authority, ACTA cannot bind U.S. law. The statements of the USTR as described above are thus correct: ACTA cannot change, or prevent the change of, U.S. law.

Under international law ACTA is a treaty. Customary international law recognizes the right of every state to bind itself to international law through the consent of its executive. If the President or a delegate signs ACTA without reservations — that is, if he expresses the intent of the United States to be bound — then the lack of congressional approval is unlikely to prevent the agreement from being binding under international law. The lack of constitutional authority of the executive to enter ACTA on its own accord may not prevent the United States from being bound. ACTA will thus be a treaty under international law, although not a treaty under U.S. domestic law.

This article explains these points in more depth. Part I gives a brief background of ACTA and its mandatory framework for minimum legislative standards that would alternatively pledge the United States to change, or to rigidly maintain, current U.S. law. Part II explains the U.S. Constitutional requirements for entry into binding international agreements and shows how the current plan for entering ACTA fails to abide by those norms. Part III describes the international law on treaty-making, which would render ACTA a binding international treaty even absent congressional consent. The article concludes with a few thoughts on why this state of affairs is a problem from the perspective of good governance and democratic accountability.

Number of Pages in PDF File: 25

Keywords: Intellectual property, ACTA, international law, international trade, separation of powers

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Date posted: January 11, 2012  

Suggested Citation

Flynn, Sean M., ACTA's Constitutional Problems: The Treaty is Not a Treaty (November 1, 2011). American University International Law Review, Vol. 26, No. 3, p. 903, 2011; American University, WCL Research Paper No. 2012-04. Available at SSRN: http://ssrn.com/abstract=1982091

Contact Information

Sean M. Flynn (Contact Author)
American University - Washington College of Law ( email )
4300 Nebraska Avenue, NW
Washington, DC 20016
United States
Program on Information Justice and Intellectual Property
4801 Massachusetts Avenue N.W.
Washington, DC 20016
United States
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