Monday, 14 May 2007

USA-EU "Open Skies" agreement signed but won't go to the Senate

On 30 April 2007, representatives of the USA and the European Union signed a so-called Open Skies agreement revising the rules for airline flights between the USA and the EU.

As I’ve noted in my analysis of the agreement and in my testimony to EU legislators and data protection authorities in Brussels in March, the “Open Skies’ agreement contains dangerous provisions which, if put into effect, would prevent any Congressional oversight of measures imposed in the name of “aviation security” by secret administrative or executive directives, and give the force of law to ICAO recommendations, effectively delegating to ICAO “technical” bodies the authority to legislate for the USA on political, civil liberties, and human rights issues.

But the impact of those provisions depends on their legal status, which has been cast into doubt by the apparent decison of the executive agencies that signed the agreement (the Deaprtments of State and Transportation) not to present it to the Senate for ratification as a treaty, in accordance with the U.S. Constitution. As a non-treaty, it grants no individual any rights and can’t be invoked as binding or as a cause of action in any U.S. court, but it also means it doesn’t have the status of “supreme law” that the Constitution accords to treaties, and can’t be held to override or preempt Congressional action or oversight. That’s the same indeterminate status that any agreement on PNR transfers will have, if (as now appears likely) it isn’t presented to the Senate for ratification either.

There’s nothing in the announcement of the signing or the text of the agreement to indicate whether it will be ratified, or what its legal status would be (as an international “agreement” that isn’t a treaty) in the absence of Senate ratification.

A widely-reprinted Associate Press report says categorically but without attribution or explanation that “The agreement does not require the approval of Congress.” There’s nothing about ratification or the legal character of the agreement in the transscript and audio of the press conference following the signing.

In answer to a question about about the PNR agreement the USA is now trying to negotiate with the EU, C. Boyden Gray, U.S. Ambassador to the European Union, told the press conference that PNR transfers had been discussed in the summit immediately preceding the signing of the “Open Skies” deal, but that, “what’s happening now is up to Congress. And the President’s made his proposal. Congress is now looking at it…. And I — in some ways, I want to say direct your questions to the Congress because they’re the ones who control the outcome. They write the rules in this instance and we are living under rules that have been written by the Congress and the Congress has to change them…. So you really ought to direct your questions to the relevant congressional committees.”

On its face, that would seem to suggest that the PNR agreement not only will be, but already is being, considered by Congress. In fact, it isn’t yet, and doesn’t appear likely to be. Gray’s statement appears to be nothing more than an attempt to evade responsibility for “agreements’ unilaterally being negotiated by the executive branch, without the Senate ratification required by the Constitution.

Link | Posted by Edward on Monday, 14 May 2007, 18:17 ( 6:17 PM)
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