Washington, D.C. – As the U.S. Trade Representative (USTR) prepares to ratify an international agreement related to the enforcement of intellectual property rights, U.S. Senator Ron Wyden (D-Ore.) – chairman of the Senate Finance Committee’s Subcommittee on Trade – sent a letter to President Obama today asking why the administration believes the Anti-Counterfeit Trade Agreement (ACTA) does not require Congress’s formal approval. According to legal experts, cited by Wyden, if the USTR ratifies ACTA without Congress’ consent it may be circumventing Congress’s Constitutional authority to regulate international commerce and protect intellectual property and would therefore represent a significant expansion of the executive branch’s authority over international agreements.
“It may be possible for the U.S. to implement ACTA or any other trade agreement, once validly entered, without legislation if the agreement requires no change in U.S. law,” Wyden writes. “But regardless of whether the agreement requires changes in U.S. law…the executive branch lacks constitutional authority to enter a binding international agreement covering issues delegated by the Constitution to Congress’ authority, absent congressional approval.”
Wyden goes on to indicate that while the USTR has long asserted its authority to enter ACTA as a “sole executive agreement,” with no congressional authorization or approval needed, it has yet to publicly explain its legal justification for that assertion.
ACTA is a plurilateral agreement currently negotiated by the U.S., Australia, Canada, Japan, Morocco, New Zealand, Singapore and South Korea, establishing basic minimum standards on a broad range of intellectual property enforcement issues. In addition to covering issues ranging from counterfeit goods to generic medications to online copyright infringement, ACTA creates a governing body that would operate outside of current international institutions such as the World Trade Organization and the World Intellectual Property Organization.
Last year, Wyden raised concerns about the lack of transparency surrounding the ACTA negotiations which took place largely in secret over the course of five years and encouraged the USTR “to give the public a say over issues that so profoundly affect their lives.” Last month, he applauded the USTR for not including controversial proposals to expand the enforcement of copyrights in the digital environment in ways that threaten the development of the Internet as a viable platform for commerce, and again stressed the need to be more inclusive: “The public has a right to know what its government is seeking in these trade agreements, especially as it relates to the Internet, and it’s time for the Obama Administration to tell them.”