[Ip-health] U.S. claim to not be bound by ACTA?

Richards, Ed richards at law.lsu.edu
Thu Apr 21 06:09:49 PDT 2011

A lot of my work is the national security area, where we test the limits of treaties and agreements much more ruthlessly than in other areas. Unless a treaty has been enabled by congress passing the treaty provisions into domestic laws, the president is free to abrogate the treaty without fear of enforcement in US courts. Conversely, the president may enter into executive agreements without congressional approval, and these are as binding as anything else - meaning they are binding as long as the president wants them to be, which is all you get. 

Sure, if the treaty includes an international enforcement mechanism that we care about, such as the WTO, treaties have some meaning because we care about enforcement. But if the enforcement is through something like the International Court of Justice, which we do not care about and do not submit to, then treaties are only as good as the president's word. (Torture memos, anyone?)

If you doubt this, I suggest that the strongest argument for presidential power, both to make and break agreements without congress and without judicial review, is the more than 100 unilateral uses of military force abroad over the past 150 years. From the Halls of Montezuma, to the shores of Tripoli...


Edward P. Richards
Director, Program in Law, Science, and Public Health
Harvey A. Peltier Professor of Law
Paul M. Hebert Law Center
Louisiana State University
Baton Rouge, LA 70803-1000
richards at lsu.edu
Phone: 225/578-7595
Fax: 225/578-5935

> -----Original Message-----
> From: ip-health-bounces at lists.keionline.org [mailto:ip-health-
> bounces at lists.keionline.org] On Behalf Of Prof. Mickey Davis
> Sent: Wednesday, April 20, 2011 3:37 PM
> To: Sean Flynn
> Cc: ip-health at lists.keionline.org; a2k at lists.keionline.org
> Subject: Re: [Ip-health] U.S. claim to not be bound by ACTA?
> There are many law professors who do not agree with that. The President
> simply has no power, executive order or not, to enter into a treaty with
> foreign nations absent legislative approval. International law cannot
> bestow powers upon individuals, whether Presidents or not, that they do
> not have. Were the king of Belgium to enter into an international accord
> with other nations, Belgium would not be bound. When the President
> pretends to exercise powers he does not have, all the international law in
> the world cannot give him that power.
> Forty law professors cannot change that, and in fact, that is not quite
> what they said.  But if they had, they would be wrong.
> Mickey Davis
> Michael H. Davis
> Professor of Law
> Cleveland State University
> College of Law
> Cleveland, OH 44115
> 216-687-2228
> 917-771-0235
> On 4/20/2011 1:49 PM, Sean Flynn wrote:
> > The USTR answer to the question of whether the "U.S. Congress" is
> > bound by ACTA is technically correct, but incredibly deceiving. See
> > http://keionline.org/node/1115
> >
> > It is true that Congress can always disregard any international
> agreement and pass law inconsistent with it. It is not bound, to this
> extent, by NAFTA, the WTO, or any other legally binding international
> agreement.
> >
> > But that does not answer the question of whether the United States is
> bound by the agreement based on the Presidential (or delwegate) signature
> alone, without submission to congress as a treaty or congressionally
> approved executive agreement.
> >
> > Unlike NAFTA, the WTO or the hundreds of congressionally approved
> executive agreements entered every year, ACTA will not be approved by
> Congress. So does the administration think that this makes the agreement
> non-binding as to the U.S. under international law? We still do not have
> an answer. But the answer under international law is pretty clear -- the
> U.S. will be bound under international law to the agreement, even if the
> U.S. constitution would require Congressional consent to bind current U.S.
> law (which it does). Thus, any inconsistency between U.S. law and ACTA,
> past or future, will open the U.S. to the possibility of legal retaliation
> under U.S. law. And US court will be required to construe ambiguous U.S.
> laws to adhere to the binding international obligation.
> >
> > At least that is the answer of 40 or so law professors in a comment to
> > USTR, explained in a soon be published law review article available at
> > http://digitalcommons.wcl.american.edu/research/
> >
> > USTR has not relied to that argument.
> >
> > Sean M Fiil Flynn
> > Associate Director
> > Program on Information Justice and Intellectual Property (PIJIP)
> > American University Washington College of Law
> > 4801 Massachusetts Ave., NW
> > Washington, D.C. 20016
> > (202) 274-4157
> >
> >
> >
> >
> >
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