ACTA to Be Signed – But Can it Enter into Force?

International IP and the Public Interest


It has been reported in the global press this week that ACTA will be signed October 1 in Japan. But that does not mean that ACTA actually goes into effect.

ACTA Article 40 states that the “Agreement shall enter into force thirty days after the date of deposit of the sixth instrument of ratification, acceptance, or approval as between those Signatories that have deposited their respective instruments of ratification, acceptance, or approval.” Although six ratifications is a pretty low threshold for an agreement with 36 parties to the negotiation, it is far from clear that this agreement will get even that.

This argument has fault logic. The regulation of intellectual property and of foreign trade through international agreements is an “Article 1” Congressional power. That means that the executive cannot bind the US to agreements in this area without congressional consent. The President lacks the authority to enter a “sole executive agreement” in this area, even if the agreement does no more that require the US to continue follow the contours of current US law. That is because the agreement purports to bind the US not to change its law, and changing US law in this area is a congressional power. This point has been made repeatedly by US law professors with no effective rebuttal. See Submission to USTR of 30 Law Professors, Sean Flynn, ACTA’s Constitutional Problem, editorial by Creative Commons founder Lawrence Lessig and Bush AAG Jack Goldsmith, article by Yale Law Professor Oona Hathaway and Berkeley Law Professor Amy Kapczynski, and Mike Masnick’s apt description of the issue. 9/29/2011