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Deutsch: [ENDitorial: Partner unterzeichnen ACTA, zahlreiche Dokumente noch immer geheim |]

Last weekend, some of the EU’s ACTA “partners” started the process of
acceding to the Agreement (US, Canada, Singapore, Australia, South Korea,
Japan and Morocco). Due to the controversial nature of the Agreement, this
is happening in different legal processes and at different speeds in
different countries. The United States finds itself in a particularly
bizarre situation – on the one hand, it claims that the Agreement is fully
in line with domestic law while, on the other, it is reportedly not prepared
to be bound by the Agreement and is treating the text as a non-binding
“Executive Agreement.” The USA does, however, expect the other signatories
of the Agreement to consider themselves legally bound. The European
Commission has so far failed to explain why it believes that it is
strategically wise to bind itself legally while the United States, a major
trading partner and competitor, leaves itself the flexibility to breach the
Agreement if it wishes.

One of the many controversial aspects of the Agreement is the fact that much
of the text is very unclear. In such circumstances, it is standard practice,
codified by the 1969 Vienna Convention on the Law of Treaties, to refer to
the documents that were produced during the drafting process. For example,
the ACTA text refers to copyright law being enforced by “cooperation”
between Internet intermediaries and rightsholders. This could theoretically
mean anything from distribution of information about copyright law to
monitoring, surveillance and punishment of citizens by private companies.
Indeed, a leak of one draft suggests that the latter explanation is what was
meant. However, that leak was never recognised by the negotiating partners
and, for all anybody knows, there may be other documents suggesting the

Many of these issues are assessed in a new study undertaken by Professor
Douwe Korff (London Metropolitan University) and Dr Ian Brown (Oxford
University). At a press conference launching the study this week, Professor
Korff raised a range of ways in which ACTA is incompatible with the EU
Treaties and singled out the privatisation of law enforcement as a
particularly egregious example.

In an effort to try to create some transparency in the ACTA dossier,
European Digital Rights sent a letter in May 2011 to the International Trade
Committee of the European Parliament asking for it to release all ACTA
preparatory documents. The Parliament finally responded this week, giving
access to some documents, but not to documents that cast any light on the
most nebulous parts of the current text. In particular, the Parliament chose
not to release the draft of the Internet chapter of 30 September 2009
(containing the disconnection proposal). “For obvious reasons of
credibility” the Parliament cannot “unilaterally” release documents. The
fact that these documents will form the basis of legal obligations for
European citizens appears irrelevant. The fact that the 2009 draft of the
Internet chapter proves that ACTA is almost certainly contrary to key
provisions of the Treaty on European Union with regard to support for
democracy and the rule of law also appears immaterial for the Parliament.

Douwe Korff’s press conference (4.10.2011)

ACTA’s Constitutional Problem: The Treaty That Is Not a Treaty (Or An
Executive Agreement) (3.01.2011)

Parliament response to EDRi document request (3.10.2011)

Digital chapter leak

(Contribution by Joe McNamee – EDRi)