- From: Seth Johnson <seth.johnson@realmeasures.dyndns.org>
- Date: Thu, 21 Feb 2002 16:06:25 -0500
- To: www-patentpolicy-comment@w3.org
(Forwarded from Free Software Law Discussion list, fsl-discuss@alt.org) -------- Original Message -------- Date: Thu, 21 Feb 2002 00:04:44 -0500 From: Steve Waldman <swaldman@mchange.com> Hi. This may be a bit off-topic, but not by much. Very many onerous laws are justified to some degree as required to meet the obligations of international treaties. For example, according www.bnetd.org (just brought to the list's attention by Drew Streib), a very awful law like the DMCA is allegedly required to implement WIPO treaties. It seems to be a pattern, a common strategy, that monied interests evade full public debate on issues by lobbying the treaty-making branches of prestigious international organizations -- and government executive branches directly involved treaty-negotiation -- in order to get their way. More democratically accountable legislative branches are then presented with the treaties as practical fait accomplis, and are faced with the unpalatable choice of accepting what has been negotiated or wreaking havoc with apparently useful goals like the harmonization of commercially important law. But these treaties require signatory countries to "implement" their provisions by passing domestic laws in the future, and countries that fail to do so may face international penalties under the terms of the treaties. I have a few questions about all this: 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. 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. Am I wrong? Naive? Has a separation of powers argument against this sort of treaty ever been litigated? Any information on this would be appreciated. thanks, Steve Waldman * Though treaties must be ratified by the legislative branch to be binding in the US, ratification of an already negotiated treaty eludes the majority of the deliberative process usually required to pass domestic law. _______________________________________________ fsl-discuss mailing list fsl-discuss@lists.alt.org http://lists.alt.org/mailman/listinfo/fsl-discuss C-FIT Community Discussion List List Parent: seth.johnson@RealMeasures.dyndns.org C-FIT Home: http://RealMeasures.dyndns.org/C-FIT To Subscribe/Unsubscribe: ------------------------------------------------------------ Send "[Un]Subscribe C-FIT_Community" To Listserv@RealMeasures.dyndns.org
Received on Thursday, 21 February 2002 16:13:11 UTC