After years of controversy, a small group of countries, including the United
States and European Union member states, announced in December 2010 that they
had finalized a new “Anti-Counterfeiting Trade Agreement”[1]
(“ACTA”). With the negotiations complete, attention has turned to a question
that may at first appear obscure, but is in fact of enormous importance: Can
the U.S. President make the agreement on his own, without Congress`s approval?
The U.S. government has made clear
that it intends to conclude ACTA as a “sole executive agreement,” meaning that
it will enter into effect upon the signature of the President or his
representative, without being formally presented for approval to either house
of Congress.[2] No comparable agreement has been concluded in this
way. Thus if concluded as a sole executive agreement, it would represent a
significant expansion of the scope of such agreements. As a result, it could
pave the way for more extensive use of sole executive agreements in the future.
That, in turn, could have implications for the nature of democratic control
over international legal agreements concluded by the United States, as well as
the legitimacy of these agreements both at home and abroad.
Understanding ACTA
ACTA is widely viewed as the most
important intellectual property agreement concluded in more than a decade.[3]
It establishes new norms across a range of intellectual property rights, with
an emphasis on heightened penalties, more summary proceedings, more extensive
border enforcement, and the introduction of obligations for third parties.
Despite its name, ACTA is not limited to provisions addressing counterfeit
trademarked goods.[4] ACTA covers all intellectual property rights
included in the World Trade Organization`s Trade-Related Aspects of
Intellectual Property Rights Agreement (“TRIPS”) and includes important new
obligations in the area of copyright and related rights, as well as trademark
and other, less well-known, forms of intellectual property such as geographical
indications used for products associated with certain regions (most famously,
“Champagne”).[5]
ACTA goes beyond existing
multilateral agreements in a variety of important ways. It increases penalties
for intellectual property infringement by requiring, for example, courts in
civil cases to provide for more expansive damages[6]
and by obliging states to extend criminal liability for copyright piracy and
trademark counterfeiting to commercial activities that have merely “indirect
economic or commercial advantage.”[7]
While TRIPS requires criminal remedies to include imprisonment or fines,
ACTA requires that criminal penalties “include imprisonment as well as
monetary fines.”[8]
ACTA also has substantial
implications for border measures. For example, it requires that state parties
give customs officials ex officio authority to detain suspect goods.[9]
And it includes a section on the enforcement of intellectual property rights in
the digital context, requiring more extensive policing of the circumvention of
technical protection measures than is currently required in international
agreements.[10]
ACTA also brings a new set of actors
within the reach of international intellectual property law. Under the
Agreement, parties are required to authorize their courts to apply preliminary
and permanent injunctions to “third parties,”[11]
which may include Internet service providers. Moreover, parties are required to
extend criminal liability to those who aid and abet criminal offenses under the
Agreement.[12]
Finally, the Agreement establishes a
permanent Committee with substantial powers, such as the power to approve or
reject any amendments to ACTA before they are submitted for a vote.[13]
The ability to limit debate on proposed amendments is notable, particularly
given that ACTA contains no commitments to transparency and was negotiated
through a process that many decried as exceptionally secretive.[14]
Diplomatic cables recently released
by WikiLeaks reveal that negotiating partners complained to the United States
about the unusual degree of secrecy, arguing that the “level of confidentiality
in these ACTA negotiations has been set at a higher level than is customary for
non-security agreements” and that the secrecy had inhibited consultation with
those who would be affected by the agreement.[15]
Nearly everyone agrees that ACTA
will add important new obligations to the international landscape, but there
has been significant debate about whether it would also require changes to U.S.
law. In the face of questions about the legality of the sole executive
agreement route, the Administration has repeatedly stressed that ACTA does not
require changes to current U.S. law.[16]
The Administration thus appears to take the position that the Agreement would
commit the United States to simply maintain existing legal rules. A recently
released analysis from the Congressional Research Service, however, concludes
instead that “[d]epending on how broadly or narrowly several passages from the
ACTA draft text are interpreted, it appears that certain provisions of federal
intellectual property law could be regarded as inconsistent with ACTA.”[17]
Even if ACTA did not require any
changes in U.S. law, it could nonetheless have domestic impact by impeding
future legal changes. If a proposed bill is in tension with ACTA (as, for
example, a recent bill regarding so-called “orphan” copyrighted works may be[18]),
legislators may oppose it for fear of putting the United States in violation of
its international legal commitments. The courts, too, are likely to be
reluctant to develop common law or read statutes in a way that is inconsistent
with the Agreement. This can produce a lock-in effect.
The potential of ACTA to lock the
United States into existing law has been a source of concern for companies at
the forefront of our rapidly changing technological environment. In a comment
submitted to the United States Trade Representative (“USTR”) criticizing the
final draft of the Agreement, for example, the Computer and Communications
Industry Association, whose members include Facebook, Google, Microsoft, and
eBay, cautioned that the United States “should not join agreements that
precludes [sic] the ability of our courts to further develop copyright laws to
protect evolving industries th[at] drive innovation.”[19]
It also noted tension between the USTR`s promotion of statutory damages in
international negotiations and existing legislative proposals to reduce
statutory damages in the United States.[20]
Stretching the Limits: Concluding
ACTA as a Sole Executive Agreement
The likely impact of ACTA on U.S. domestic law underscores the importance of
the President`s decision to conclude the Agreement as a sole executive agreement.
Until now, it has been understood
that the President may enter international agreements as sole executive
agreements so long as they are within his sole constitutional authority. In
other words, the President may not commit the United States to an international
agreement on his own if he would be unable to carry out the obligations created
by the agreement on his own in the absence of an agreement.[21]
The State Department`s own guidance on the question states plainly that “[t]he
term `sole executive agreement` is appropriately reserved for agreements made
solely on the basis of the constitutional authority of the President,” and
illustrates the domain of this constitutional authority with Article II powers
such as the Commander-in-Chief power.[22]
Because of these strict limits, sole executive agreements have traditionally
made up only a small fraction of the executive agreements concluded every year.[23]
Some of ACTA`s provisions clearly
fall within the scope of the President`s sole executive authority, including
his inherent constitutional power to oversee the activities of executive
agencies. But scholars have pointed out that portions of the agreement go
beyond the traditional bounds of a sole executive agreement.[24]
In particular, ACTA creates commitments that implicate the core contours
of intellectual property law. Yet the President is not afforded any special
constitutional authority over intellectual property law. Rather, the
Constitution identifies this as an Article I—and thus legislative—power.[25]
The President could not require U.S. courts to apply statutory damages or criminal
penalties to acts of piracy; these are acts of lawmaking reserved to Congress.
Even if the commitments in ACTA are
fully consistent with existing U.S. law (a matter of ongoing debate),[26]
the agreement would still represent a significant expansion of the President`s
sole executive authority. Agreements that lock in existing law can have an
important effect on the development of domestic law.[27]
An international commitment to maintain existing domestic intellectual property
laws would be a striking interpretation of presidential powers. If
adopted, it would permit the President acting alone to commit the United States
to international agreements in any area—trade, human rights, environment, and
so forth—as long as these are consistent with today`s law. Future
Congresses would then be unable to change those laws without placing the United
States into violation of its international commitments.
Coupled with the Bush Administration`s
decision to conclude the Strategic Framework Agreement and the Agreement on the
Withdrawal of United States Forces from Iraq and the Organization of Their
Activities During Their Temporary Presence in Iraq as sole executive
agreements,[28] ACTA may therefore mark a growing trend toward
President-made agreements in the United States and indicate an implicit shift
in the internal understandings about the limits on executive authority within
the Department of State. Indeed, if the President is able to conclude this
Agreement as a sole executive agreement, he could, arguably, commit the United
States to other similarly substantive international agreements, such as free
trade agreements or arms treaties, on his own.
Expanded use of sole executive
agreements is likely to have several other effects as well. First, it reduces
democratic control over international lawmaking. Were ACTA not concluded as a
sole executive agreement, it would have to be concluded as either an Article II
treaty—made by the President and approved by two-thirds of the Senate—or as an
“ex post congressional-executive agreement”—negotiated by the President and
then submitted to both houses of Congress for an up or down vote.[29]
In either case, one or both houses of Congress would have an opportunity to
debate and then approve or reject the agreement. The sole executive agreement,
by contrast, is made by the President alone, and can be concluded in utter
secrecy—revealed to Congress and the public sixty days after it enters
into effect.[30]
Setting a precedent for more
expansive use of sole executive agreements has consequences not only for
intellectual property law, but for any area in which an international agreement
may be concluded—which is to say, nearly any area of law. International law now
reaches into almost every aspect of our day-to-day lives. The possibility that
such legal commitments could be made by the President without the input, much
less approval, of Congress or the public raises serious questions about the
potential of these agreements to undermine democratic lawmaking writ large.
Establishing a precedent for a more
expansive use of sole executive agreements could have a second pernicious
effect—making international commitments without democratic support could
threaten the strength and durability of those very commitments. The dangers are
evident in the case of ACTA. In response to questions raised by a U.S. Senator
concerned about the scope of ACTA, the U.S. Trade Representative asserted that
ACTA “does not constrain Congress` authority to change U.S. law.”[31]
European Parliamentarians have in turn demanded that their own negotiators
explain whether the U.S. considers itself bound by the Agreement.[32]
Answering these concerns, European Commissioner for Trade Karel De Gucht
insisted that 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.”[33]
Both statements can be true. The
Agreement could be binding as a matter of international law, and Congress could
nonetheless be empowered to change domestic law in a way that places the United
States in violation of that binding agreement. But doing so would undermine the
United States` reputation for fair dealing in the international community. The
United States ordinarily tries to avoid violating its international legal
commitments, even those that are not binding as a matter of domestic law. Concluding
this far-reaching Agreement as a sole executive agreement thus not only avoids
democratic review, but it may place the agreement on a collision course with
the international rule of law.
Conclusion
The
Anti-Counterfeiting Trade Agreement promises to establish a new international
legal framework for intellectual property rights enforcement. Yet it appears
poised to have a less-expected and perhaps unintended effect: concluding ACTA
as a sole executive agreement is in substantial tension with existing
principles of presidential power to make international law and could set a
precedent for more expansive use of sole executive agreements. The Agreement,
after all, reaches far beyond topics understood to be within the sole
constitutional authority of the President. This second effect may actually
prove the more important of the two for the United States in the long term.