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4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

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9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

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    US Perspectives
    US Supreme Court Questions America’s Power To Carry Out Treaties

    Published on 26 November 2013 @ 8:40 pm

    By for Intellectual Property Watch

    On 5 November, the United States Supreme Court heard oral arguments in a case that could undermine America’s ability to carry out its treaty obligations. The case casts a shadow over the country’s power to implement a wide variety of international agreements, including trade and intellectual property agreements.

    In Bond v. United States, Carol Anne Bond is challenging a federal statute that implements the Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on their Destruction, to which the United States is a signatory. The implementing statute passed by the US Congress makes it unlawful for any person to possess, make, or use “any chemical weapon.”

    Bond was convicted of violating this statute because she used dangerous chemicals in an attempt to poison her husband’s mistress.

    Bond appealed her conviction and is now asking the nation’s highest court to strike down the law she violated. She is asking the Supreme Court to rule that Congress did not have the power to enact the federal statute implementing the Convention.

    Bond is arguing that Congress’ legislative powers are specified in Article I, Section 8 of the US Constitution, and that none of these powers allows the federal legislature to criminalize her use of deadly chemicals against another individual. The states have traditionally been responsible for punishing such attempted homicides, and according to Bond, the 10th Amendment to the Constitution prevents the Congress from usurping this responsibility. (The 10th Amendment states that “powers not delegated to the United States by the Constitution … are reserved to the States respectively, or to the people.”)

    The United States government is arguing that the statute at issue is constitutional because Congress’ powers go beyond those listed by Article I, Section 8 of the Constitution. The statute is justified, the government contends, by the federal government’s Article II power to make treaties – which implies the power to implement these treaties. Moreover, treaties are “the supreme Law of the Land” according to Article VI of the Constitution, so they and their implementing statutes are not limited by the 10th Amendment’s protection of states’ rights.

    Bond has countered that the treaty power does not expand Congress’ power to legislate. If it did, there would be no limit on the scope of Congress’ power. It could pass a law on any subject, no matter how local, so long as the law implements some treaty.

    Reopening a Settled Issue

    Most experts thought this issue had been settled long ago. In 1920, the Supreme Court held in Missouri v. Holland that Congress has the power to pass laws implementing a treaty, even if those laws would otherwise be beyond the legislative powers granted to Congress by Article I, Section 8 of the Constitution. The high court rejected the argument that such implementing legislation violated the 10th Amendment. This ruling has been followed by US courts for the past 93 years.

    The current Supreme Court, however, appears poised to overturn these precedents. At oral argument, only three Justices sceptically questioned Bond’s position. Five Justices grilled the government over its position. Many observers thus expect the court to rule against the government.

    This inference, however, should be viewed with some skepticism. Justices’ questions in oral arguments often do not reflect their final positions in a case. Still, the fact that at least four Justices voted to hear this case suggests that a large segment of the court is seriously considering overturning the legal principle established in Missouri v. Holland.

    If the court rules in favour of Bond and overturns Missouri v. Holland, “there would be uncertainty about the United States’ ability to carry out its treaty obligations,” said Dr. Klinton W. Alexander, an Of Counsel at Baker Donelson who specializes in international trade issues.

    All types of non-self-executing treaties could be affected, including international IP agreements, according to Alexander.

    “A Supreme Court decision overturning, or modifying, Missouri v. Holland … will signal to the world that if the prohibition against the use of chemical weapons can be set aside in certain ‘local’ instances, then so can US commitments under the WTO or the Patent Cooperation Treaty,” he said.

    Moreover, a decision against the government in Bond could significantly damage America’s standing as a dependable international partner – and undermine other nations’ willingness to enforce their own treaty obligations.

    If US judges can “engage in case-by-case invalidation of exercises of the Treaty Power when they thought conduct was too ‘local’ to be regulated,” that “would prompt similar reciprocal behaviour in other nations, hamstring US trade negotiators, and undermine global confidence in the United States as a reliable treaty partner to the detriment of the national security and economic interests of the United States,” Alexander said. “This would send a signal to countries around the world that entering into a treaty with the US is an uncertain endeavour at best.”

    Some experts, however, assert that if the Supreme Court rules against the government in Bond, the fallout will be limited. Self-executing treaties might not be affected at all, Prof. Rick Pildes of New York University Law School has argued.

    But there is a powerful reason why many international agreements, including the WTO agreements, are not self-executing: Any treaty that requires proactive enforcement on the ground, such as an IP treaty, requires nation-by-nation implementing legislation, Alexander explained. Thus it could prove impracticable for the United States to try to make many types of international agreements self-executing.

    Other experts assert that a US government loss in Bond would have little or no effect on many non-self-executing agreements, because they concern legislative subjects that are within Congress’ Article I powers – such as  patents, copyrights, and regulating interstate commerce.

    “Most IP laws that are relevant to today’s society are made at the federal level, so the issues raised in the Bond case won’t impact them,” said Douglas F. Stewart, a partner in the Seattle office of Bracewell & Giuliani.

    But even under this legal interpretation, some important non-self-executing agreements could be imperiled. If the US wanted to enter into a treaty on moral rights, trade secrets or other IP rights beyond the scope of Article I-sanctioned patent, trademark and copyright law, that could still run afoul of states’ rights.

    Whatever the decision in Bond, it is unlikely to be the Supreme Court’s last word on the extent to which international agreements are effective in the US.

    “There is an anti-international law movement in this country,” Alexander said. This case, he added, is “part of movement to assert states’ rights as a way to minimize or outlaw the effect of international law. Again, the 10th Amendment rears its ugly head as a way towards isolationism.”

     

    Steven Seidenberg is a freelance reporter and attorney who has been covering intellectual property developments in the US for more than 15 years. He is based in the greater New York City area and may be reached at info@ip-watch.ch.

     


    Leave a Reply

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

    6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

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