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Tony Barber on ACTA

Tony Barber’s brief blog post on ACTA this week was painfully even-handed, and ended on a most curious note:

[I]f the EU wants to be taken seriously in its self-appointed role as the world’s most fervent supporter of a rules-based international political and economic order, then it will need to clean up its act on Acta.

What does this even mean?

Lord knows I find plenty to disagree with in Kenneth Anderson’s approach to US international relations (cf. here for the first 3 chapters of his book – I’m still waiting to read the rest). The idea that – to paraphrase – the US should only ever join negotiations on the condition that they won’t have to give in, and that the resulting treaty won’t actually force it to do anything that it wouldn’t already do anyway is completely absurd. (Prof. Anderson seems to agree at least with the last part.) But insisting that we ratify all treaties that we sign seems like a bit of an exaggeration in the opposite direction. It seems quite possible to be a fervent supporter of a rules based international order while at the same time insisting that new treaties require ratification in accordance with the law. And yes, sometimes that means that the treaty that was “envisaged” (to borrow a word from art. 218(11) TFEU) will not actually enter into force.

[Side-note: Read here for prof. Laurens Ankersmit’s awesome analysis of whether the European Commission can still obtain an art. 218(11) opinion of the Court of Justice on ACTA. He concludes that the Commission would like to have such an opinion, at least if it is favourable, but that the Court can easily declare the application inadmissible if it should want to dodge the question.]

Now, in light of the rest of Mr. Barber’s post, I don’t think he really meant to argue that the EP should not be “striking down” treaties. [Another side-note: we lawyers tend to talk about striking things down only when we are talking about court cases. Otherwise, we’d prefer “shoot down”.] Instead, I think he was saying – somewhat awkwardly – that without something along the lines of ACTA, the international intellectual property protection regime is less of a regime than a lawless free-for-all. And while that is a valid point, I’m not sure if I agree that this is something the EU cannot allow to continue if it is to be “the world’s most fervent supporter of a rules-based international political and economic order”.

Just because you support reliance on rules over power or diplomacy in international relations does not mean that you should support the introduction of rules everywhere. Think of the situation in municipal law (i.e. non-international law): we all like not living in Somalia, but that does not mean we support every rule that is proposed, or even a rule for all situations. Some behaviour should be governed by legal rules, and other behaviour should not be. That is a position that one can hold while simultaneously being, in a general sense, a supporter of rules. Likewise, the EU should support and promote a rule-based system of international relations, because it is the civilised thing to do, but that does not mean that we should support all rules that are proposed, and ratify all treaties. Nor does it mean that we should support the introduction of rules in every and any area of human endeavour. In some areas, actors should simply be free.

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