EU: ACTA Is A Binding Treaty; US: ACTA Is Neither Binding, Nor A Treaty
from the funny-how-that-works dept
We've noted in the past how the US government (mainly via the USTR) has worked hard to try to play down the importance of ACTA to its critics (while, simultaneously, playing up how important it is to various lobbyists). For example, after years of promising that ACTA wouldn't change any US laws, the fact that the US does not actually comply with everything in ACTA represents a problem. The USTR gets around this by saying that we can just ignore the parts that don't match up with US law. Also, there's the whole lie about how ACTA is not a treaty. Oh no no no. According to US officials, ACTA is merely an "executive agreement." Of course, if you talk to legal experts, they'll point out that the only real difference between a treaty and an executive agreement is whether or not the Senate has any say in approving it. Making it an executive agreement is just a ploy to avoid Senate hearings. It also raises serious constitutional questions, since the Executive branch of the US government has no mandate to approve such things.But, to summarize: according to the US, ACTA is not binding in that it can ignore the parts it doesn't like, and it's not a treaty. Got it? Not binding. Not a treaty.
Okay, let's jump over to Europe. A few months back, we had noted that the EU's Commissioner for Trade, Karel De Gucht, who, more or less, was in charge of the EU's position on ACTA, insisted that it was a treaty. And the latest news is that, in response to a question from the EU Parliament's Francoise Castex, De Gucht has also said that ACTA is binding:
The Anti-Counterfeiting Trade Agreement (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).Apparently, MEP Castex sent the question about this way back at the beginning of November. The delay in response is allegedly due to De Gucht begging Castex to withdraw the question, perhaps knowing that the answer was going to get him in trouble.
So, if you're playing along with the home game, the EU says that ACTA is a binding treaty. The US says it's neither binding, nor a treaty.
Kinda makes you wonder what they spent so much time negotiating in secret, doesn't it, when they can't even agree on what the document is about.
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Filed Under: acta, executive agreement, karel de gucht, treaty, us, ustr
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Re: The US only said it wasn't binding for the U.S.
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[skit]
US: Hi! Put these on, they'll protect you from pirates. (makes air quotes on saying 'pirates' - offers handcuffs)
EU: Thanks! (locking cuffs on own wrists) So, everybody in our group is going to wear these, right?
US: Yeah, of course! (deftly places own handcuffs, unfastened, into suit jacket pocket) I'm just about to put mine on.
EU: (looking slightly worried) Okay, great. Catch ya later.
US: (whistling nonchalantly and walking away, waves goodbye without even looking)
[/skit]
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I haven't really crunched any numbers but ....
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Re: I haven't really crunched any numbers but ....
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Re: Re: I haven't really crunched any numbers but ....
In the US judges are beginning to see this for what it is. You have YouTube - Viacom recently. You have all the mass lawsuits getting split up due to ?process? violations. You have the DOJ-HomeSec-ICE domain seizures, violationg 1st (prior restraint), 4th, 14th amendments which will be slapped down the instant someone gets this in front of a judge. You have COICA being blocked, and when a judge comes down on HomeSec and ICE for the domain seizures, COICA basically becomes a moot point because it is the same thing ICE is now doing.
So now do you think this whole push for greater IP enforcement is going to come crashing down?
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Re: Re: Re: I haven't really crunched any numbers but ....
It does seem like the mass lawsuits aren't going to work, but I don't think that is beginning of a bigger change. So far no politicians seem to be willing to take a stand and bring the issues to the public, but they are all willing to listen to what the lobyists ask for. The public isn't angry (or informed) enough about it to force it to be a big election issue, so I don't see a big crash. I think they will just stop the mass lawsuits and focus on squeezing out liberties in other ways.
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The mass lawsuits, I agree, they are going to get shot down.
"So far no politicians seem to be willing to take a stand and bring the issues to the public"
Sen Wyden blocked COICA ... nuff said on that
"but I don't think that is beginning of a bigger change."
They are concentrating on a single cause (PIRACY) when there are actually about a dozen causes. With "piracy" they have, or will in the next year, reached the limit of what they can legally do via lobbying and political influence. Recently they stretched into a legal grey area (read probably illegal) with the domain seizures. From here the only way they can go is down.
"enough about it to force it to be a big election issue, so I don't see a big crash."
I don't either, but I do see a possible one term president and big changes at ICE, DOJ, HomeSec when he get the boot.
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what limit? Through lobbying, you slowly get the laws changed. The only limit comes when people stop tolerating it.
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But you end up hitting a constitutional wall which is where we are or are about to be. Lets see them change these words ...
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
or
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
or
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Yes, we have gotten to a point where the US is run by corporate interests. But they can only push so far.
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http://www.techdirt.com/articles/20110208/00095113002/ip-czar-report-hits-all-lobby ist-talking-points-warns-more-draconian-copyright-laws-to-come.shtml
...yay, more bad, unweildy, unenforceable rights-skinning law.
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The average person couldn't care less about copyright infringement. You have to use something with more emotional force.
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If you go to any forum and start a discussion on copyrights people just cuss at the defenders of such thing. The ad's campaign in NY comes to mind, from what I saw on Youtube people would just spit in their faces if they could.
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The funny thing is...
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But there's always some confusion when this issue of binding/treaty/etc comes up.
US courts (theoretically) are not bound by ACTA since it's not "law" in the US; by contrast, a treaty has the same force as a statute--in fact, it has exactly equal status with a statute. If a ratified treaty contradicts an already-existing US statute, the statute falls, but any later statute that contradicts the treaty trumps the treaty. The last-in-time always controls.
The argument is, that from an internal US perspective, since ACTA is not a treaty, it can't trump anything.
But, the US *has* ratified the Vienna Convention, a sort of meta-treaty which states very clearly that if an authorized representative of a state signs it, the state is bound. This isn't enough to make US courts actually bound by ACTA--the Senate can't delegate power to the President to make treaties like that.
But there really is such a thing called international law. t doesn't have an army, but it determines, among other things, how countries are permitted to treat each other under certain international frameworks, like the WTO. One if its basic rules is that you don't make a treaty a not-treaty by calling it something else. Another is that (unless the treaty has language to the contrary) a country is bound by any treaty its government signs, regardless of any internal "ratification" procedures it might have.
International law doesn't care what goes on within the US after the US government signs an agreement, only that the US has represented that it is party to an agreement. Thus, if the US is not in compliance with ACTA, any aggrieved country can take the same steps against the US as it could if the US were not in compliance with any "treaty."
It's simply not within the power of the US government to tell other countries that we're only bound by some international agreements it signs and not others, and other countries are not expected to have to know the ins-andoouts of each other countries particular legal provisions when they sign treaties with each other.
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Yes, but the US doesn't have to (and doesn't seem to) care that that anyone takes these impotent "steps".
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Re: ACTA
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Legally binding or not, it sets global norms
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Re: Legally binding or not, it sets global norms
"We regret the Obama Administration is insisting on such a sleazy approach to global norm setting."
You should watch what is going on with ACTA's little brother, the UK's DEA. To get an idea of how well this will actually work in the EU. The two things that give ACTA any teeth are, disconnection from the internet, and criminal penalties (jail time). Both of which are probably going to be shot down, in the UK and possibly the EU, before ACTA is signed.
I am so glad they jumped the gun on the DEB-DEA. That one mistake could prevent ACTA from being signed.
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Re: Re: Legally binding or not, it sets global norms
Wouldn't that violate some European countries laws like in either Denmark, or Switzerland. One of the countries has a national law that garantes its citizen the right to have at least a 1mbps internet connection. By a law such as that it would be unconstitutional. Am I right to say that?
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Re: Re: Re: Legally binding or not, it sets global norms
One or more of the EU countries recently made internet access a right. It may be illegal, not unconstitutional. It depends on the country, the constitution (or what ever passes for one), and the laws of the country.
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The other problem is that every nation is sovereign, and only follow treaties because they feel like it. In terms of the US, who has a ton of power, there is no stick to make it conform to a treaty(what are you going to do, not trade with them?) and since there is no international body that can force someone to conform, legally, the US doesn't have to do anything.
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British English
When the EU says it's a Binding Treaty, they don't mean it like Americans do, they mean it's used for S&M foreplay.
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In other words, it's another non-reciprocal agreement that favors US corporations and business interests. It makes EU citizens potential litigation fodder. The EU will see litigation on an unprecedented scale.
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