As US Insists ACTA Is Not A Treaty, EU Trade Commissioner Admits It's A Treaty

from the ooooops dept

Thu, Nov 18th 2010 3:19pm — Mike Masnick

We've already posted about David Kappos' non-response to legality questions about ACTA, but at the bottom of KEI's coverage of this story there's another interesting point. ACTA supporters in the US have been bending over backwards to insist that ACTA is not a treaty. Any time anyone mentions it as a treaty in the comments here, one of the ACTA supporters among our readership will quickly admonish them for being clueless about the law and will insist that this is nothing more than an "executive agreement," which does not need Senate approval. It's one of ACTA supporters' favorite talking points. Of course, there are some serious constitutional questions about that.

However, much more telling is that many ACTA supporters will outright admit it's a treaty. We already noted that the Business Software Alliance (BSA) did just that a few weeks ago (and also falsely claimed it had already been signed by 37 countries). However, much more telling is that the EU's Commissioner for Trade, Karel De Gucht, has also admitted that the document is really a treaty. Apparently in a communication to the EU Parliament, De Gucht specifically and formally noted three times that ACTA is, in fact, a treaty. I can't wait for the responses in our comments about how it's not a treaty now.

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Filed Under: acta, executive agreement, karel de gucht, treaty

26 Comments

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Jay (profile), 18 Nov 2010 @ 3:35pm

If a country has no concept of an "executive agreement" then it would be impossible for them to call it one. In many states there are many definitions and types of "treaty", the same word is used to mean more than one thing. So what someone in Europe may call a treaty someone in the USA may call an "executive agreement" and it wont change a thing.
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Mike Masnick (profile), 18 Nov 2010 @ 3:38pm

Re:
If a country has no concept of an "executive agreement" then it would be impossible for them to call it one. In many states there are many definitions and types of "treaty", the same word is used to mean more than one thing. So what someone in Europe may call a treaty someone in the USA may call an "executive agreement" and it wont change a thing.

Doesn't that kind of make the point that there's no real difference between them... and raise serious questions as to why the US will not allow it to go through the standard treaty process?
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Eugene (profile), 18 Nov 2010 @ 4:04pm

I'd tell you to stop feeding the trolls, but your trolls are so incompetent that you might as well throw them a bone.
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Jake, 18 Nov 2010 @ 4:11pm

Re: Re:
Actually, that does raise an important point. I'm no great student of constitutional law, but I'd not be enormously surprised if calling ACTA an 'executive agreement' instead of a treaty will make it considerably easier for its signatories to find some way to wriggle out of it.

And is it just me, or has the tone of Mike's articles and comments become noticeably more bitter lately?
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Matt, 18 Nov 2010 @ 4:21pm

I don't know if I'd say "bitter," but I have noticed a change in tone that leans that way. Mike, are you getting tired of beating your head against the wall, buddy? Keep up the good work! I, for one, am enjoying the new more biting language that you're using while still remaining pretty even keel about everything.
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Steven (profile), 18 Nov 2010 @ 4:21pm

Re: Re: Re:
Calling it an 'executive agreement' instead of a treaty means it doesn't have to pass through congress to be voted on (ratified).
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Anonymous Coward, 18 Nov 2010 @ 4:44pm

Many of us who point out that ACTA is represented as an executive agreement don't support ACTA and don't necessarily agree that it holds up as one, only that this is how it's been presented to us.
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Adam Wasserman (profile), 18 Nov 2010 @ 4:54pm

Re:
Just because something is presented as x does not mean it really is x and not y.

The Viet Nam War was not a war but a "police action". Waterboarding is not torture but "enhanced interrogation techniques".

Suggested reading: 1984 by George Orwell. It provides an excellent perspective on governments propensity for finding pleasant sounding euphemisms for heinous things.
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Alex Bowles, 18 Nov 2010 @ 4:58pm

Re: Re: Re: Re:
It also means not including anything that contravenes existing law. Once that line is crossed, then it needs to go through Congress. Oh, and that makes it a treaty.

So the question for our friends supporting this becomes "how can you call this an Executive Agreement when it requires changes to existing law?"

The are two possible answers - (1) "Actually, it doesn't" or (2) "Well, actually it does, so you're right, this is a treaty."

Given that one of this is a flat-out lie, you can be absolutely sure which one you'll get. Hint: it's not #2.
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william (profile), 18 Nov 2010 @ 4:59pm

Re:
If a country has no concept of a species of fish named "salmon", then it would be impossible for them to call it one. In many states there are many definitions and species of "salmon", the same word is used to mean more than one species of "salmon". So what someone in Europe may call a "fish", someone in the USA may call a "salmon", and it wouldn't change a thing.

There.
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william (profile), 18 Nov 2010 @ 5:05pm

Re:
*made some mistake, darn*

If a country has no concept of a species of fish named "salmon", then it would be impossible for them to call it one. In many states there are many definitions and species of "fish", the same word is used to mean more than one species of "fish". So what someone in Europe may call a "fish", someone in the USA may call a "salmon", and it wouldn't change a thing.

There.
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out_of_the_blue, 18 Nov 2010 @ 5:11pm

It's "executive agreement" AND a "treaty", as convenient.
Doublethink.

But, again, doesn't *matter* what term they use for some ink or pixels, all that matters is that they'll *enforce* whatever they wish.
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Pixelation, 18 Nov 2010 @ 6:05pm

Spin
"I can't wait for the responses in our comments about how it's not a treaty now."

Mike, it's not a treaty.

That's like a kick me sign. Can't help but oblige.

It's all about the spin. As Neil Young said..."We've got a thousand points of light for the homeless man. We've got a kinder gentler machine gun hand. Keep on rockin' in the free world."
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Karl (profile), 18 Nov 2010 @ 6:14pm

Re: Re: Re: Re:
Calling it an 'executive agreement' instead of a treaty means it doesn't have to pass through congress to be voted on (ratified).

Yes, and that's a problem.

If it remains an "executive agreement," then no changes to domestic law (for any signature countries) is needed. It will then pass, without any democratic process.

What then happens is that these "executive agreements" are then used to pressure our government (and every other) into compliance with the "agreement."

It's a way to change U.S. law through a back door, without going through any sort of democratic process.
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Karl (profile), 18 Nov 2010 @ 6:16pm

Re:
So, you've learned to use a proxy now?
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Anonymous Coward, 18 Nov 2010 @ 6:57pm

Re: Re: Re:
I'm noticing it too man. Relax Mike, it'll all be ok. Or it won't. But definitely one of the two!
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Anonymous Coward, 18 Nov 2010 @ 7:36pm

Re: Re: Re: Re: Re:
It also means not including anything that contravenes existing law. Once that line is crossed, then it needs to go through Congress. Oh, and that makes it a treaty.

I don't think that's right. Where does it say an executive agreement can't change the law?
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Anonymous Coward, 18 Nov 2010 @ 7:36pm

Re:
Actually Jay all the countries (and unions) that are a party (signatory to happen in the future) to ACTA all follow the same diplomatic and international guidelines when it comes to defining what is and what isn't a treaty.

Interestingly if a majority of those parties classify it as a treaty and therefore treat it as an international instrument (or fundamental constitutive document) that binds them into an agreement (treaty) with other sovereign powers then it is therefore under both diplomatic precedence and "customary international law" a treaty that is BINDING on all parties.

WIPO is like that, so is the UN Treaties that have been signed (though the UDHR is really a binding instrument on member states it is still classified as a treaty by all signatories) and one other contentious (for the USA) treaty is very similar to ACTA. This is the "Convention on the Rights of the Child" which every other country in the world has signed with the exception of Somalia and the United States.. Why has the US refused to sign? because it is a treaty that would override most domestic laws on children and families (as it should) due to the US Constitutions Supremecy clause in Article 6

Therefore whether the USA calls ACTA a treaty (in public mind you) or not is irrelevant. It will still be binding, it will still come under diplomatic precedence and it will most definitely come under customary international law. If the USA states that it is NOT a treaty then the USA (or any country) will have a very hard time in using it as a stick, and the Rights holders like RIAA/MPAA etc will find the first time they want to prosecute that any defendant worth their salt will immediately use as a defence that it is NOT a treaty and the jurisdiction where they reside (or are tried) cannot use it.
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G Thompson (profile), 18 Nov 2010 @ 7:41pm

OOPS
The previous comment to Jay by "Anonymous Coward, Nov 18th, 2010 @ 7:36pm" was by myself.
I didn't realise I was logged out..
oh well ..so being an anony mouse.. do I get cheese? ;)
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Anonymous Coward, 18 Nov 2010 @ 8:12pm

they say its a treaty in canada too
they say its a treaty in canada too
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Mike Masnick (profile), 18 Nov 2010 @ 10:13pm

Re: Re: Re: Re: Re: Re:
I don't think that's right. Where does it say an executive agreement can't change the law?

That's what everyone who has been supporting ACTA -- including the USTR -- has been saying all along. Are you now suggesting otherwise?

I believe the argument is that the executive branch has no authority to change the law. That's the legislative branch's job.
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Christopher (profile), 18 Nov 2010 @ 11:50pm

Re: Re: Re: Re: Re: Re: Re:
Right in one, Mike. The fact is that ONLY CONGRESS and other legislating bodies have the right to change the law. The Supreme Court and other courts can NULLIFY them based on Constitutional issues, but even they cannot change them.
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Christopher (profile), 18 Nov 2010 @ 11:51pm

Re: Re: Re: Re: Re:
And that is why they are Unconstitutional and illegal, and the people who are pushing them should be arrested for subverting the democratic process.
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Drizzt, 19 Nov 2010 @ 12:13am

Transcript of the debate in Parliament
The primary source, that is the transcript of what Mr. De Gucht said, can be found at: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+CRE+20101020+ITEM-016+DOC+XML+V0//E N&language=EN
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isaac the k, 19 Nov 2010 @ 5:25am

I suggest
That people read this insightful article published yesterday in Ars Technica:
http://arstechnica.com/business/problem-solving/2010/11/part-3-analogies-in-argument.ars

What you are promoting is a false analogy.

In fact, what they are TRYING to say is that a "salmon" is NOT a "fish." So, yeah...

There.
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Open Acta Mexico, 19 Nov 2010 @ 6:57am

Treaty
Is clear that the role of mexican negotiators Gilda Gonzalez and Jorge Amigo in null by now and they limit to obey orders from the USTR and MPA Mexico... however they never denied is a treaty.
A few days ago in a forum about Internet and Human Rights, the representant of Amprofon (a mexican riaa) shockingly explaining ACTA (not IMPI?!) said "This is the way treaties are negotiated" adding that by the way TRIPS is 15 years behing legislation they need.
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