Treaties and Domestic Law

[Seth Johnson <seth.johnson@RealMeasures.dyndns.org>]

(Forwarded from Free Software Law Discussion list,
fsl-discuss@alt.org)

-------- Original Message --------
Date: Thu, 21 Feb 2002 00:04:44 -0500
From: Steve Waldman <swaldman@mchange.com>


Hi. This may be a bit off-topic, but not by much.

Very many onerous laws are justified to some degree as
required to meet  the obligations of international treaties.
For example, according  www.bnetd.org (just brought to the
list's attention by Drew Streib), a  very awful law like the
DMCA is allegedly required to implement WIPO  treaties.

It seems to be a pattern, a common strategy, that monied
interests evade  full public debate on issues by lobbying
the treaty-making branches of  prestigious international
organizations -- and government executive  branches directly
involved treaty-negotiation -- in order to get their  way.
More democratically accountable legislative branches are
then  presented with the treaties as  practical fait
accomplis, and are faced  with the unpalatable choice of
accepting what has been negotiated or  wreaking havoc with
apparently useful goals like the harmonization of 
commercially important law. But these treaties require
signatory  countries to "implement" their provisions by
passing domestic laws in  the future, and countries that
fail to do so may face international  penalties under the
terms of the treaties.

I have a few questions about all this:

1) Am I mischaracterizing what goes on? I haven't yet looked
into these  treaties in a careful way. I just keep noticing
they are used to justify  a lot of onerous stuff, here, in
Europe, and elsewhere.

2) Have these sorts of treaties ever been subject to a
head-on  constitutional challenge in the United States? By
binding Congress to  pass future laws or face penalties,
without providing for detailed  legislative deliberation on
the specifics of the required laws, these  treaties seem to
do an end-run around the legislative process,  prejudicing
the debate on future laws so that their passage is 
predicated not only on the laws' inherent merit, but on the
avoidance of  artificial consequences created by the
international treaties. Since  treaty-making is an executive
function*, the effect of all this is to  give the executive
branch greater power over the passage of future laws  than
the US Constitution intends. Treaties that bind a country to
pass  future laws thus seem to me an unconstitutional
violation of the  constitutionally enshrined separation of
powers.

Am I wrong? Naive? Has a separation of powers argument
against this sort  of treaty ever been litigated? Any
information on this would be appreciated.

thanks,
Steve Waldman


* Though treaties must be ratified by the legislative branch
to be  binding in the US, ratification of an already
negotiated treaty eludes  the majority of the deliberative
process usually required to pass  domestic law.

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