As US Insists ACTA Is Not A Treaty, EU Trade Commissioner Admits It's A Treaty

from the ooooops dept

We've already posted about David Kappos' non-response to legality questions about ACTA, but at the bottom of KEI's coverage of this story there's another interesting point. ACTA supporters in the US have been bending over backwards to insist that ACTA is not a treaty. Any time anyone mentions it as a treaty in the comments here, one of the ACTA supporters among our readership will quickly admonish them for being clueless about the law and will insist that this is nothing more than an "executive agreement," which does not need Senate approval. It's one of ACTA supporters' favorite talking points. Of course, there are some serious constitutional questions about that.

However, much more telling is that many ACTA supporters will outright admit it's a treaty. We already noted that the Business Software Alliance (BSA) did just that a few weeks ago (and also falsely claimed it had already been signed by 37 countries). However, much more telling is that the EU's Commissioner for Trade, Karel De Gucht, has also admitted that the document is really a treaty. Apparently in a communication to the EU Parliament, De Gucht specifically and formally noted three times that ACTA is, in fact, a treaty. I can't wait for the responses in our comments about how it's not a treaty now.

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  • icon
    Jay (profile), 18 Nov 2010 @ 3:35pm

    If a country has no concept of an "executive agreement" then it would be impossible for them to call it one. In many states there are many definitions and types of "treaty", the same word is used to mean more than one thing. So what someone in Europe may call a treaty someone in the USA may call an "executive agreement" and it wont change a thing.

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    • icon
      Mike Masnick (profile), 18 Nov 2010 @ 3:38pm

      Re:

      If a country has no concept of an "executive agreement" then it would be impossible for them to call it one. In many states there are many definitions and types of "treaty", the same word is used to mean more than one thing. So what someone in Europe may call a treaty someone in the USA may call an "executive agreement" and it wont change a thing.

      Doesn't that kind of make the point that there's no real difference between them... and raise serious questions as to why the US will not allow it to go through the standard treaty process?

      reply to this | link to this | view in chronology ]

      • identicon
        Jake, 18 Nov 2010 @ 4:11pm

        Re: Re:

        Actually, that does raise an important point. I'm no great student of constitutional law, but I'd not be enormously surprised if calling ACTA an 'executive agreement' instead of a treaty will make it considerably easier for its signatories to find some way to wriggle out of it.

        And is it just me, or has the tone of Mike's articles and comments become noticeably more bitter lately?

        reply to this | link to this | view in chronology ]

        • icon
          Steven (profile), 18 Nov 2010 @ 4:21pm

          Re: Re: Re:

          Calling it an 'executive agreement' instead of a treaty means it doesn't have to pass through congress to be voted on (ratified).

          reply to this | link to this | view in chronology ]

          • identicon
            Alex Bowles, 18 Nov 2010 @ 4:58pm

            Re: Re: Re: Re:

            It also means not including anything that contravenes existing law. Once that line is crossed, then it needs to go through Congress. Oh, and that makes it a treaty.

            So the question for our friends supporting this becomes "how can you call this an Executive Agreement when it requires changes to existing law?"

            The are two possible answers - (1) "Actually, it doesn't" or (2) "Well, actually it does, so you're right, this is a treaty."

            Given that one of this is a flat-out lie, you can be absolutely sure which one you'll get. Hint: it's not #2.

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            • identicon
              Anonymous Coward, 18 Nov 2010 @ 7:36pm

              Re: Re: Re: Re: Re:

              It also means not including anything that contravenes existing law. Once that line is crossed, then it needs to go through Congress. Oh, and that makes it a treaty.

              I don't think that's right. Where does it say an executive agreement can't change the law?

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              • icon
                Mike Masnick (profile), 18 Nov 2010 @ 10:13pm

                Re: Re: Re: Re: Re: Re:

                I don't think that's right. Where does it say an executive agreement can't change the law?

                That's what everyone who has been supporting ACTA -- including the USTR -- has been saying all along. Are you now suggesting otherwise?

                I believe the argument is that the executive branch has no authority to change the law. That's the legislative branch's job.

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                • icon
                  Christopher (profile), 18 Nov 2010 @ 11:50pm

                  Re: Re: Re: Re: Re: Re: Re:

                  Right in one, Mike. The fact is that ONLY CONGRESS and other legislating bodies have the right to change the law. The Supreme Court and other courts can NULLIFY them based on Constitutional issues, but even they cannot change them.

                  reply to this | link to this | view in chronology ]

          • icon
            Karl (profile), 18 Nov 2010 @ 6:14pm

            Re: Re: Re: Re:

            Calling it an 'executive agreement' instead of a treaty means it doesn't have to pass through congress to be voted on (ratified).

            Yes, and that's a problem.

            If it remains an "executive agreement," then no changes to domestic law (for any signature countries) is needed. It will then pass, without any democratic process.

            What then happens is that these "executive agreements" are then used to pressure our government (and every other) into compliance with the "agreement."

            It's a way to change U.S. law through a back door, without going through any sort of democratic process.

            reply to this | link to this | view in chronology ]

            • icon
              Christopher (profile), 18 Nov 2010 @ 11:51pm

              Re: Re: Re: Re: Re:

              And that is why they are Unconstitutional and illegal, and the people who are pushing them should be arrested for subverting the democratic process.

              reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 18 Nov 2010 @ 6:57pm

          Re: Re: Re:

          I'm noticing it too man. Relax Mike, it'll all be ok. Or it won't. But definitely one of the two!

          reply to this | link to this | view in chronology ]

    • icon
      william (profile), 18 Nov 2010 @ 4:59pm

      Re:

      If a country has no concept of a species of fish named "salmon", then it would be impossible for them to call it one. In many states there are many definitions and species of "salmon", the same word is used to mean more than one species of "salmon". So what someone in Europe may call a "fish", someone in the USA may call a "salmon", and it wouldn't change a thing.

      There.

      reply to this | link to this | view in chronology ]

    • icon
      william (profile), 18 Nov 2010 @ 5:05pm

      Re:

      *made some mistake, darn*

      If a country has no concept of a species of fish named "salmon", then it would be impossible for them to call it one. In many states there are many definitions and species of "fish", the same word is used to mean more than one species of "fish". So what someone in Europe may call a "fish", someone in the USA may call a "salmon", and it wouldn't change a thing.

      There.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Nov 2010 @ 7:36pm

      Re:

      Actually Jay all the countries (and unions) that are a party (signatory to happen in the future) to ACTA all follow the same diplomatic and international guidelines when it comes to defining what is and what isn't a treaty.

      Interestingly if a majority of those parties classify it as a treaty and therefore treat it as an international instrument (or fundamental constitutive document) that binds them into an agreement (treaty) with other sovereign powers then it is therefore under both diplomatic precedence and "customary international law" a treaty that is BINDING on all parties.

      WIPO is like that, so is the UN Treaties that have been signed (though the UDHR is really a binding instrument on member states it is still classified as a treaty by all signatories) and one other contentious (for the USA) treaty is very similar to ACTA. This is the "Convention on the Rights of the Child" which every other country in the world has signed with the exception of Somalia and the United States.. Why has the US refused to sign? because it is a treaty that would override most domestic laws on children and families (as it should) due to the US Constitutions Supremecy clause in Article 6

      Therefore whether the USA calls ACTA a treaty (in public mind you) or not is irrelevant. It will still be binding, it will still come under diplomatic precedence and it will most definitely come under customary international law. If the USA states that it is NOT a treaty then the USA (or any country) will have a very hard time in using it as a stick, and the Rights holders like RIAA/MPAA etc will find the first time they want to prosecute that any defendant worth their salt will immediately use as a defence that it is NOT a treaty and the jurisdiction where they reside (or are tried) cannot use it.

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      • icon
        G Thompson (profile), 18 Nov 2010 @ 7:41pm

        OOPS

        The previous comment to Jay by "Anonymous Coward, Nov 18th, 2010 @ 7:36pm" was by myself.
        I didn't realise I was logged out..
        oh well ..so being an anony mouse.. do I get cheese? ;)

        reply to this | link to this | view in chronology ]

  • icon
    Eugene (profile), 18 Nov 2010 @ 4:04pm

    I'd tell you to stop feeding the trolls, but your trolls are so incompetent that you might as well throw them a bone.

    reply to this | link to this | view in chronology ]

  • identicon
    Matt, 18 Nov 2010 @ 4:21pm

    I don't know if I'd say "bitter," but I have noticed a change in tone that leans that way. Mike, are you getting tired of beating your head against the wall, buddy? Keep up the good work! I, for one, am enjoying the new more biting language that you're using while still remaining pretty even keel about everything.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Nov 2010 @ 4:44pm

    Many of us who point out that ACTA is represented as an executive agreement don't support ACTA and don't necessarily agree that it holds up as one, only that this is how it's been presented to us.

    reply to this | link to this | view in chronology ]

    • icon
      Adam Wasserman (profile), 18 Nov 2010 @ 4:54pm

      Re:

      Just because something is presented as x does not mean it really is x and not y.

      The Viet Nam War was not a war but a "police action". Waterboarding is not torture but "enhanced interrogation techniques".

      Suggested reading: 1984 by George Orwell. It provides an excellent perspective on governments propensity for finding pleasant sounding euphemisms for heinous things.

      reply to this | link to this | view in chronology ]

  • identicon
    out_of_the_blue, 18 Nov 2010 @ 5:11pm

    It's "executive agreement" AND a "treaty", as convenient.

    Doublethink.

    But, again, doesn't *matter* what term they use for some ink or pixels, all that matters is that they'll *enforce* whatever they wish.

    reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 18 Nov 2010 @ 6:05pm

    Spin

    "I can't wait for the responses in our comments about how it's not a treaty now."

    Mike, it's not a treaty.

    That's like a kick me sign. Can't help but oblige.

    It's all about the spin. As Neil Young said..."We've got a thousand points of light for the homeless man. We've got a kinder gentler machine gun hand. Keep on rockin' in the free world."

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  • identicon
    Anonymous Coward, 18 Nov 2010 @ 8:12pm

    they say its a treaty in canada too

    they say its a treaty in canada too

    reply to this | link to this | view in chronology ]

  • identicon
    Drizzt, 19 Nov 2010 @ 12:13am

    Transcript of the debate in Parliament

    The primary source, that is the transcript of what Mr. De Gucht said, can be found at: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+CRE+20101020+ITEM-016+DOC+XML+V0//E N&language=EN

    reply to this | link to this | view in chronology ]

  • identicon
    Open Acta Mexico, 19 Nov 2010 @ 6:57am

    Treaty

    Is clear that the role of mexican negotiators Gilda Gonzalez and Jorge Amigo in null by now and they limit to obey orders from the USTR and MPA Mexico... however they never denied is a treaty.
    A few days ago in a forum about Internet and Human Rights, the representant of Amprofon (a mexican riaa) shockingly explaining ACTA (not IMPI?!) said "This is the way treaties are negotiated" adding that by the way TRIPS is 15 years behing legislation they need.

    reply to this | link to this | view in chronology ]


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