ACTA: Will It Ever Become A Valid International Treaty?

A quiet and little-publicised ratification process might be the last hope for those pushing for international adoption of the Anti-Counterfeiting Trade Agreement (ACTA). But while the Japanese legislature managed to finalise their ratification recently, processes in several ACTA signatory states seem to be stalled. Some may ask whether ACTA will ever become an international treaty.

“In the middle of the night” and “without ever being heard of by the general public” were the attributes used in media reports to characterise the ratification process completed after votes in the two chambers of the Japanese legislature.

The ACTA text is available here.

Angry Pirate Party in Japan

“We are angry, because ACTA was ratified by a non-democratic way,” Hideto Suzawa, a provisional party leader of the nascent “Pirate Party Japan” wrote to Intellectual Property Watch.

Legislators had taken up the ratification process over the summer holidays with a Committee of the House of Councillors on 31 July approving the agreement after one hour of what Suzawa called “empty deliberations”. Only three days later, the House of Councillors, after a mere four minutes of discussion, approved the ratification by a 217 to 9 vote, according to Suzawa. “All mass media have refused to report about this affair again,” he complained.

But with a censure motion against the Japanese Prime Minister in place on 30 August, the Japanese ACTA opponents felt safe at least for the moment, as normally legislative activities stop due to the fact that the opposition parties supporting the censure motion do not participate in any further pending votes. “We felt that a miracle happened,” Suzawa said.

But on 31 August, a committee of the House of Representatives, and on 6 September, the full House of Representatives pushed ACTA through, each time counting only the votes of the ruling party.

“To ratify an international treaty without the attendance of all opposition parties means a collapse of democracy in Japan,” warned Suzawa. The Pirate Party, which intends to become a registered political group this month, will continue to campaign against ACTA, even now.

Six Ratifications Necessary; Many Processes Slowed or Stalled

ACTA will only become a valid international agreement for the ACTA partners after six ratification documents have been deposited with the Japanese government, which is the chosen depository.

With an apparent stalemate between the US administration and legislators about ratification procedures and the European Union out after the Parliament voted against the agreement, it looks as if there is still an uphill battle to get to reach that number.

Besides the EU and Japan, seven governments have signed ACTA (Australia, Canada, Morocco, New Zealand, Singapore, South Korea and the United States). Switzerland has not signed nor ratified.

“Not much is happening on the Canadian front,” wrote Michael Geist, Canada Research Chair of Internet and E-commerce Law at the University of Ottawa and long-time ACTA observer. “Canada signed ACTA, but has not ratified. Ratification would likely require some legislative amendments,” Geist said, and until those changes are introduced the country would not be positioned to ratify. There may be, according to Geist, linkage between ACTA and CETA (the Canada-EU Trade Agreement) under negotiation.

Britton Broun, media advisor of the Economic Group in the Ministry of Business, Innovation and Employment of New Zealand, responded to Intellectual Property Watch by saying: “While New Zealand has signed ACTA, the government has not yet taken a decision on its ratification.”

As was usual practice with international treaties, “there will be public consultation and the preparation of a National Interest Analysis (NIA) prior to the government making a decision on ratification,” Broun said. “If a decision was taken to ratify the agreement, the text of the agreement and the accompanying NIA would then be tabled in Parliament for scrutiny and debate.”

The place for the public to make submissions would be a “select committee”. Also, the official said, “any decision by the government about ratification would naturally take into consideration developments in other ACTA signatory countries.”

Developments in other countries have not been friendly to ACTA so far, however. Yet another example is the situation in Australia. Kimberlee Weatherall, associate professor at University of Sydney Law School, explains that in Australia the parliamentary “Joint Standing Committee on Treaties (JSCOT) “recommended a wait and see approach: wait to see what happens in Europe, in particular.” That had been before the EU Parliament rejected ACTA in June. The JSCOT, according to Weatherall, also recommended “that the government do work into possible impacts of the treaty and offer some explanations, and that the committee look at it again once that work was done.”

Rarely has the JSCOT made such a negative report, Weatherall wrote. And with no answer from the Australian government to this report so far, Weatherall said, “the process is stalled.”

“I think there is still a chance that the government will choose to ratify, asserting the view, strongly held by the bureaucracy/negotiators, that it does not require any changes to Australian law, Weatherall said. “I think, however, that the government won’t be in any hurry to do so, and may in fact wait the outcome of the Trans-Pacific Partnership Agreement [TPP] negotiations or further developments in Europe, and ratify at some later point as part of a package of IP measures.“

Push for ACTA and Move On

The 14th round of TPP negotiations is currently being held in Leesburg, Virginia, amidst ever louder calls to publish the full text – there is a “Wanted” poster by the organisation Democracy in Action that has collected over $32,000 US dollars for anyone who publishes the TPP draft text.

The TPP brings several of the troubled ACTA negotiators together again, including Australia, Canada, Mexico, New Zealand, and the United States.

In Mexico, recently the IP Office (IMPI) did sign ACTA despite the earlier vote of the Mexican Senate to reject ACTA.

Luis Mariano Velázquez Chéquer, deputy director for the Promotion and Dissemination of Industrial Property at the IMPI informed Intellectual Property Watch that the new senators who were appointed on 1 September would “in the future” be in charge to either “ratify or reject Mexico’s adhesion to ACTA.”

Can ACTA finally be ratified after all the “noise” around the agreement has died down and the opponents’ attention has shifted? Perhaps a quiet approval like in Japan is still possible, otherwise negotiators will just have to re-start as the TPP or CETA negotiators somehow already did.