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

Authors

Sean FlynnFollow

Document Type

Article

Publication Date

3-2011

Abstract

The planned entry of the U.S. into the Anti-Counterfeiting Trade Agreement (ACTA) poses a unique Constitutional problem. The problem is that the President lacks constitutional authority to bind the U.S. to the agreement without congressional consent; but that lack of authority may not prevent the U.S. from being bound to the agreement under international law. If the administration succeeds in its plan, ACTA may be a binding international treaty (under international law) that is not a treaty (under U.S. Constitutional law).

Recommended Citation

Flynn, Sean. 2011. ACTA's Constitutional Problem: The Treaty That Is Not a Treaty (Or An Executive Agreement). PIJIP Research Paper no. 19. American University Washington College of Law, Washington, D.C.