EU: ACTA Is A Binding Treaty; US: ACTA Is Neither Binding, Nor A Treaty

from the funny-how-that-works dept

Wed, Feb 9th 2011 9:04am — Mike Masnick

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

44 Comments

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crade (profile), 9 Feb 2011 @ 8:08am

The US only said it wasn't binding for the U.S. it never said it wasn't binding for everyone else.
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Hephaestus (profile), 9 Feb 2011 @ 8:51am

I haven't really crunched any numbers but ....
Does anyone else feel like, the whole over reaching, IP enforcement thing, is going to come crashing down very hard in a year or two?
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crade (profile), 9 Feb 2011 @ 9:06am

Re: I haven't really crunched any numbers but ....
I dunno, I had that feeling when the DMCA stuff in the U.S. was put in but I was obviously wrong. Now I think it's just going to keep getting worse and worse.
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Ima Fish (profile), 9 Feb 2011 @ 9:10am

Regardless of whether the ACTA is binding, our laws will change. Even if it is not binding, the copyright industry will simply argue the laws need to be changed to meet our international obligations.
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MrWilson, 9 Feb 2011 @ 9:17am

Re:
"Our international obligations" of course being the ones put forth by the US trade reps who were working in the interests of the copyright industry to begin with.
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Anonymous Coward, 9 Feb 2011 @ 9:18am

Re:
Put together with Espaniel's statements...

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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Kirk (profile), 9 Feb 2011 @ 9:19am

Re: The US only said it wasn't binding for the U.S.
True. However, note the EU official who says it's binding for ALL PARTIES. It doesn't add up.
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Mats Henricson, 9 Feb 2011 @ 9:27am

The funny thing is...
The funny thing is, apparently, that the US never signed the Vienna Convention...
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crade (profile), 9 Feb 2011 @ 9:28am

Re: Re: The US only said it wasn't binding for the U.S.
Well, I'll admit I was just being facetious. I think the EU official is being a bit naive. An agreement is only binding when you are willing and able to enforce it. Otherwise you are depending on Honour...
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john, 9 Feb 2011 @ 9:30am

Mike's right that the primary value of ACTA to content industries, is political.

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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:Lobo Santo (profile), 9 Feb 2011 @ 9:30am

Re:
Perhaps it's going down a little something like this:

[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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Kevin (profile), 9 Feb 2011 @ 9:56am

Re: Re: Re: The US only said it wasn't binding for the U.S.
Then what was the point behind all of it. If we were never planning on enforcing it then why did we even create it. Additionally if they think that it is binding and we do not then what incentive is there for them to sign it?
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Anonymous Coward, 9 Feb 2011 @ 9:58am

Re: Re:
Remind us again of which "rights" you are suddenly losing.
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cc (profile), 9 Feb 2011 @ 10:04am

Re: I haven't really crunched any numbers but ....
I think it'll happen eventually, but it may not even happen in our lifetimes. Perhaps it all depends on what strategy China decides to use to usurp the US's position...
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crade (profile), 9 Feb 2011 @ 10:05am

Re:
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."

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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crade (profile), 9 Feb 2011 @ 10:12am

Re: Re: Re: Re: The US only said it wasn't binding for the U.S.
The point was to get other countries laws to line up more how the U.S. wants them to. The U.S. is definately planning on enforcing the parts that don't line up with it's laws in other countries. In Canada I'm pretty sure the incentive to sign is because we are pussies and the U.S. told us to or else the will make life hard for us. I would guess Japan and (maybe EU?) are happy with having the U.S. help pressure other countries in the agreement to change their laws to be closer to what they want even though they probably know the U.S. won't comply themselves.
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Anonymous Coward, 9 Feb 2011 @ 10:17am

Re: Re: Re:
Due process, free speech, fair use, doctrine of first sale...all these have been attacked in the past year or two.
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Hephaestus (profile), 9 Feb 2011 @ 10:24am

Re: Re: I haven't really crunched any numbers but ....
Look at what is happening with DEA-ACTA in the UK. The ACS Laws ruling seems to say that there is no way to prove that IP addresses are the people being blamed. There is a judicial review next moth on the BT and TalkTalks (ISP's) opposition to DEA. Which mean the big brother of the DEA, ACTA, becomes toothless. You also have the EU privacy issues to contend with.

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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crade (profile), 9 Feb 2011 @ 10:44am

Re: Re: Re: I haven't really crunched any numbers but ....
Unfortunately, I'm not hopful at the moment.
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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el_segfaulto (profile), 9 Feb 2011 @ 10:46am

Re: Re: Re: Re: Re: The US only said it wasn't binding for the U.S.
I know this is scant reassurance, but United Statsians are just as pussified as Canadians and the rest of the world (perhaps more so) in that we let our own government bully us around spreading the message of douchiness and arrogance around the globe. I did a lot of traveling in grad school and still keep in touch with friends from other countries, and I trust each and every one of them (more than half are Canadians) more than I trust my own government.
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Justin Olbrantz (Quantam), 9 Feb 2011 @ 10:48am

Re: I haven't really crunched any numbers but ....
Oh, I'm pretty sure something's gonna come crashing down at some point in our lifetime, but I'm not sure it'll go how you're thinking. See my previous post on the topic: http://bit.ly/h9UlNB
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Liquid (profile), 9 Feb 2011 @ 10:52am

Re: Re:
No the US wouldn't care we'd crash our economy again, and then cripple the rest of the world. Damn near what happened when it tanked in late 2008. By Thanksgiving 2008 the rest of the world was starting to feel the effects of the downturn.
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James Love (profile), 9 Feb 2011 @ 11:09am

Legally binding or not, it sets global norms
USTR does not want to say the agreement is binding because they don't want to submit the agreement to the Congress for review. DG-Trade does not want to acknowledge that the US only sees this as a political document, and will not change its laws. But at the end of the day, it will change global norms. We regret the Obama Administration is insisting on such a sleazy approach to global norm setting. I expected something better from these guys.
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Hephaestus (profile), 9 Feb 2011 @ 11:23am

Re: Re: Re: Re: I haven't really crunched any numbers but ....
"It does seem like the mass lawsuits aren't going to work, "

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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Eugene (profile), 9 Feb 2011 @ 11:43am

Re: Re:
Yeah, this is all basically the crappiest bait and switch ever conceived. You can smell the long con from a mile away.
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Anonymous Coward, 9 Feb 2011 @ 11:45am

Re: Re: Re: Re:
BUT COPYRIGHT INFRINGEMENT!!!
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Justin Olbrantz (Quantam), 9 Feb 2011 @ 11:48am

Re: Re: Re: Re: Re:
That's "BUT STEALING!!!"

The average person couldn't care less about copyright infringement. You have to use something with more emotional force.
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Dave, 9 Feb 2011 @ 11:54am

Re:
So doesn't that mean it was a US crime for President Obama to sign an international agreement he didn't have the power to sign?
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crade (profile), 9 Feb 2011 @ 11:55am

Re: Re: Re: Re: Re: I haven't really crunched any numbers but ....
"reached the limit of what they can legally do via lobbying and political influence"
what limit? Through lobbying, you slowly get the laws changed. The only limit comes when people stop tolerating it.
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Hephaestus (profile), 9 Feb 2011 @ 12:05pm

Re: Legally binding or not, it sets global norms
I have read some of your stuff, in the huffington post perhaps.

"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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Kevin (profile), 9 Feb 2011 @ 12:09pm

Re: Re: Re: Re: Re: Re: The US only said it wasn't binding for the U.S.
We (Americans) have tried to tell our government through elections and the numerous letters which I have sent to my representatives that they are douches(more appropriately phrased though). What ends up happening is that we end up with some other douche doing the same thing or worse as the one we removed, or I get some basic form letter that says things without saying ANYTHING at all. We the people my fucking ass.
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Anonymous Coward, 9 Feb 2011 @ 12:13pm

Re: Re: Re: Re: Re: Re:
All Caps shouter has accuracy on his side.
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Anonymous Coward, 9 Feb 2011 @ 12:28pm

i think the U.S. gets away saying ACTA isn't binding because the US never ratified the Vienna convention, yes?
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Liquid (profile), 9 Feb 2011 @ 12:41pm

Re: Re: Legally binding or not, it sets global norms
"disconnection from the internet"

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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Hephaestus (profile), 9 Feb 2011 @ 12:48pm

Re: Re: Re: Re: Re: Re: I haven't really crunched any numbers but ....
"what limit? Through lobbying, you slowly get the laws changed."

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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Anonymous Coward, 9 Feb 2011 @ 12:55pm

There's a weird interplay for treaties in the US. The president has the power to negotiate treaties, yet it isn't enforceable until the senate signs it into law. It's part of the checks and balances built into the US government by the constitution.

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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Hephaestus (profile), 9 Feb 2011 @ 12:58pm

Re: Re: Re: Legally binding or not, it sets global norms
" By a law such as that it would be unconstitutional"

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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al, 9 Feb 2011 @ 1:02pm

Re: ACTA
Last time I read the Constitution (3 weeks ago), there was a procedure for the U.S. becoming party to a treaty. There IS NO OTHER procedure. This is just an agreement. The procedure is in place so that we will not find that an agent of our government has sold out the nation. If you remember your history, you would find a similar situation in the Treaty of Versailles which our president signed and which was not ratified. This ratification process is exactly why we are bound to NAFTA, which has hurt us economically.
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Anonymous Coward, 9 Feb 2011 @ 1:08pm

British English
Don't you know Mike, this is British English we're talking about - the words have completely different meanings!

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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CarlWeathersForPres (profile), 9 Feb 2011 @ 1:17pm

Re: Re:
He has the power to sign treaties and international agreements. He doesn't have the power to create law in the US. That's the unique difference.
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crade (profile), 9 Feb 2011 @ 1:49pm

Re: Re: Re: Re: Re: Re: Re: I haven't really crunched any numbers but ....
are you serious? They don't change them they just ignore them. Especially that second one, I don't know how anyone can take that seriously anymore.
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Anonymous Coward, 9 Feb 2011 @ 2:11pm

Re: Re: Re: Re: Re: Re:
Keeping it real I don't even believe that strategy will work anymore they saturated the media with hyperbole for so long that people just don't believe anything they say anymore.

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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btrussell (profile), 9 Feb 2011 @ 5:52pm

If it isn't binding, why bother at all?
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Anonymous Coward, 1 Mar 2012 @ 8:32am

ACTA will never be legally binding in the US. This is by design. It will enable US corporations to promptly obtain the details of EU citizens for alleged IPR infringements, but not vice versa.

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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