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Followup on Treaties and Domestic Law

From: Seth Johnson <seth.johnson@realmeasures.dyndns.org>
Date: Thu, 21 Feb 2002 16:07:04 -0500
Message-ID: <3C756178.146EA9B@RealMeasures.dyndns.org>
To: www-patentpolicy-comment@w3.org

(Reply forwarded from Free Software Law Discussion list,

-------- Original Message --------
Date: Thu, 21 Feb 2002 02:27:05 -0500
From: Lynn Winebarger <owinebar@free-expression.org>

On Thursday 21 February 2002 00:04, Steve Waldman wrote:
> 1) Am I mischaracterizing what goes on? I haven't yet
> looked into these treaties in a careful way. I just
> keep noticing they are used to justify a lot of onerous
> stuff, here, in Europe, and elsewhere.
      Seems that way to me as well.

> 2) Have these sorts of treaties ever been subject to a
> head-on constitutional challenge in the United States?
> By binding Congress to pass future laws or face
> penalties, without providing for detailed legislative
> deliberation on the specifics of the required laws,
> these treaties seem to do an end-run around the
> legislative process, prejudicing the debate on future
> laws so that their passage is predicated not only on
> the laws' inherent merit, but on the avoidance of
> artificial consequences created by the international
> treaties. Since treaty-making is an executive function*,
> the effect of all this is to give the executive branch
> greater power over the passage of future laws than the
> US Constitution intends. Treaties that bind a country
> to pass future laws thus seem to me an unconstitutional
> violation of the constitutionally enshrined separation
> of powers.

      Treaties (in the US) do have to be agreed to by the
Senate, and  on occasion they do exercise their perogative
to disagree in this  regard (the League of Nations comes to
mind).         I don't know if there has been a case in the
past, but I think  there are some types of terms that would
be so blatantly egregious that  they would be struck down by
the Supreme Court as outside the power of  the federal
government to enact.  For example, if there was a treaty 
requiring the US to adopt a national religion, that should
be struck  down.  The executive and legislative branches can
agree to whatever  they want to, but it would be outside the
scope of their power to  implement.  The same reasoning
should go to other kinds of treaties,  but WIPO isn't as
clear cut a case (for the current USSC, anyway).  It  all
depends on whether they consider the explicit enumeration of
IP  law-making as a power of the Congress as excluding it
from being  derived from other powers granted the
Congress(*) and limiting it to  the purpose given (advancing
the arts and sciences).  With true  literalists, you'd think
this would be in the bag (for us), but given  the
shenanigans of a year ago, the actual judicial doctrine of
the  conservatives on the bench is something of a
mystery.        Of course,  I don't know whether the USSC
would actually strike  down a treaty per-se, or just the
laws attempting to implement the  treaty.   I think they
clearly have the power to do the latter, but  it'd be nice
to think they could put a check on treaty-kiting by the 
other two branches (so to speak).


(*)  like regulating interstate commerce.

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Received on Thursday, 21 February 2002 16:13:12 UTC

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