Chemical Weapons before the US Supreme Court: Bond v. United States

I’m very pleased to host another guest post from Dr. Daniel Rietiker.  This time Daniel provides a review and commentary of the recent decision of the U.S. Supreme Court in the Bond case.

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Chemical Weapons before the US Supreme Court: Bond v. United States, June 2, 2014 (case note)
Daniel Rietiker, PhD
It is rare that the Supreme Court of the United States deals with arms control or disarmament issues. It did so recently and delivered its opinion in the case of Bond v. the United States on June 2, 2014. The case arose from a lurid domestic dispute that started when a Pennsylvania woman, Ms. Bond, a microbiologist, learned that her husband was the father of her best friend’s child. This curious case deals with the obligation to implement the provisions of the 1993 Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction (CWC), and there deserves the following brief considerations.
[For the text of the opinion: http://www.supremecourt.gov/opinions/13pdf/12-158_6579.pdf%5D

The Facts of the Case
Petitioner Bond sought revenge against H with whom her husband had carried on an affair. She stole a quantity of 10-chloro-10H-phenoxarsine, an arsenic-based compound, from her employer, a chemical manufacturer. She also ordered a vial of potassium dichromate, a chemical commonly used in printing photographs or cleaning laboratory equipment, on Amazon.com. Both chemicals are toxic to humans and, in high enough doses, potentially lethal. It is undisputed, however, that Bond did not intend to kill H.

She then spread the two toxic chemicals on H’s car, mailbox, and door knob in hopes that H would develop an uncomfortable rash. On one occasion H suffered a minor chemical burn that she treated by rinsing with water, but Bond’s attempted assaults were otherwise entirely unsuccessful. The local authorities decided not to pursue the matter, but federal prosecutors charged Bond with violating, among other things, 18 U.S.C. Section 229(a), that is based on the 1993 Chemical Weapons Convention to which the US is a party. Bond moved to dismiss the chemical weapons charges on the ground that the Act violates the Tenth Amendment. When the District Court denied her motion, she pleaded guilty but reserved the right to appeal. The Third Circuit initially held that Bond lacked standing to raise her Tenth Amendment challenge, but the Supreme Court reversed. On remand, the Third Circuit rejected her Tenth Amendment argument and her additional argument that Section 229 does not reach her conduct.

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New Cases by the EU General Court Striking Down Iran Sanctions Listings

I just wanted to draw attention to several cases recently decided by the EU General Court in which EU sanctions against designated individuals and businesses allegedly connected to Iran’s nuclear program have been annulled.  These are just the latest in a growing line of cases in both the EU General Court and the European Court of Justice reaching similar decisions regarding EU sanctions targeting Iran’s nuclear program, which are essentially attempts to implement UN Security Council sanctions against Iran. I’ve written about this issue before on a couple of occasions.  The EU Sanctions Blog has a great run down of the three recent cases here, here and here.  I’m particularly pleased to note that the Sharif University of Technology was represented in its case by my friend Matthew Happold.  See the text of the court’s judgment in this case here.  Congratulations to Matt and to the University.

In terms of the legal merits of these cases, they really are just a continuation of the same bases on which earlier cases in this line have been decided. Basically the EU courts are requiring the EU and state governments to provide evidence on which the sanctions are based, and the governments involved are refusing to do so. Thus, as a basic matter of due process, the court has decided that the sanctions cannot stand on a lack of proffered evidence.  A very sound holding in my view.

Hopefully, of course, the current round of P5+1 negotiations with Iran will produce a comprehensive agreement before the July 20 deadline, and this will lead to these EU sanctions being repealed, as part of a normalization of relations between Iran and the West.  I think it is reasonable to expect that both the UN Security Council and the EU will be willing and able to withdraw the sanctions they have imposed against Iran over the past ten years, pursuant to such a comprehensive diplomatic agreement (as long as the US administration chooses to at least not veto such a decision by the UNSC). I have just about zero confidence, however, that the US government will be able to implement meaningful sanctions relief promised under such a comprehensive agreement.  As I’ve said before, I think the biggest impediment to implementing a comprehensive agreement between Iran and the West over Iran’s nuclear program is the US Congress.