[A2k] [Ip-health] U.S. claim to not be bound by ACTA?

Prof. Mickey Davis michael.davis at law.csuohio.edu
Wed Apr 20 13:37:20 PDT 2011

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

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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