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

Sean Flynn sflynn at wcl.american.edu
Wed Apr 20 10:49:52 PDT 2011

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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