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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 opposite.

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)
http://greenmediabox.eu/archive/2011/10/04/pressconference/index.html

ACTA's Constitutional Problem: The Treaty That Is Not a Treaty (Or An Executive Agreement) (3.01.2011)
http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=102...

Parliament response to EDRi document request (3.10.2011)
http://www.edri.org/ACTA_transparency

Digital chapter leak
http://www.edri.org/files/acta_digital_chapter.pdf

(Contribution by Joe McNamee - EDRi)