SCOTUS and the CWC: A Challenge to the U.S. CWC Implementation Act
Posted: August 28, 2013 Filed under: Chemical | Tags: Bond v. United States, chemical weapons, Constitution, CWC, CWC Implementation Act, Federalism, U.S. Supreme Court 2 CommentsAnd now for something completely non-Syrian that still involves chemical weapons. In its October 2013 Term, the US Supreme Court will hear Bond v. United States, a case that involves treaty interpretation and constitutional challenges to the CWC Implementation Act. Briefly, the federal government successfully prosecuted Carol Ann Bond under the criminal provisions of this Act for using toxic chemicals against a woman who had an affair with Bond’s husband. Bond challenged the federal government’s interpretation of the CWC (as implemented in the Act) and asserted that the treaty did not apply to her case. She also argued that the CWC Implementation Act was unconstitutional because it exceeded Congress’ authority to pass legislation to implement a valid treaty, encroached on state authority for local criminal matters, and, thus, violated principles of federalism.
For those interested in learning more about the case, see the Bond v. United States page on SCOTUSblog. This page includes links to the briefs filed by the parties and amicus briefs submitted by various experts. One such amicus brief filed by experts on international arms control agreements (including me) supports the U.S. government’s position in this case and seeks “to explain the CWC’s requirements in light of its text, structure and history and the shared understanding of the 189 states parties to the CWC, to explain the treaty’s importance for the United States and the rest of the world, and to explain the reasons why the terms of the treaty were intentionally made expansive.”
Arms Control Law 
I did hear about this case and I’m glad you’ve brought it up, David. From what little I know about it, it seems to me that it was an unfortunate decision on the part of the prosecutor to choose this particular statute to bring the charge under. That being said, I do support the underlying constitutionality of the statute, and I think its extremely important that the US Congress be able to use their Missouri v. Holland power to adopt legislation implementing treaties. The US federal structure already makes US treaty compliance very difficult (I’m thinking of the VCCR line of cases, e.g. Medellin), particularly in the area of human rights law. If Congressional authority to implement treaties is further limited, it will not be good for the ability of the US to be a meaningful participant in international lawmaking, because treaty partners will know that US treaty negotiators are essentially writing international checks they can’t domestically cash.
Yes, discussion of this case has raised the issue of prosecutorial discretion, but, for better or worse, Bond was prosecuted under the CWC Implementation Act, and so we’ve ended up having to deal with her treaty and constitutional challenges. The amicus brief I joined mainly deals with the meaning of the CWC and the incorporation of that meaning into the CWC Implementation Act. But the constitutional issues about the treaty power and federalism are fascinating too, and, as often happens, the various briefs by the parties and the amici on both sides on these issues make fascinating reading. My sense of the case is that the Supreme Court will hold that the CWC (as implemented by the CWC Implementation Act) clearly covers what Bond did, meaning it will have to address the treaty/federalism issues rather than finding a statutory or treaty interpretation way of avoiding the constitutional questions.