Bond, the treaty power, and the overlooked value of non-self-executing treaties.

• Author: Ku, Julian G.
• Position: Symposium on Treaty Power and Bond v. United States

Introduction

The Supreme Court's decision in Bond v. United States (1) sidestepped potentially momentous questions of constitutional law regarding the treaty power and federalism under the U.S. Constitution. By adopting a narrow interpretation of a federal statute implementing the Chemical Weapons Convention, (2) the Court refused to reach the petitioner's claim that the statute exceeded the federal government's powers over the states.

Most commentators have rightly focused on the fundamental constitutional questions presented (and avoided) by the Court's decision. This contribution focuses on a different aspect of the case. The treaty at issue in the Bond case, the Convention on the Prohibition of the Development, Production,

Stockpiling and Use of Chemical Weapons and on Their Destruction (3) (commonly known as the Chemical Weapons Convention or CWC), was not directly applicable within the U.S. domestic legal system. Rather, the CWC is "non-self-executing," which means that its domestic legal effect requires a separate act of Congress. Congress did so by enacting the Chemical Weapons Convention Implementation Act of 1998 (CWCIA). (4) It was one of the provisions of the CWCIA that was used to prosecute Carol Bond. For this reason, Bond's constitutional challenges to her conviction were largely aimed at the power of Congress to implement a treaty rather than at the constitutional force of the treaty itself. This made the Bond case the first Supreme Court decision in decades to consider the constitutional nature and scope of what has become an increasingly vital mechanism for international agreement making: the non-self-executing treaty.

Non-self-executing treaties like the CWC are common today, but they have often been subject to criticism from academic commentators. The criticism usually falls along two lines. First, numerous commentators have argued that too many treaties are interpreted to be non-self-executing, when in fact the Constitution's text, structure, and history suggests that most U.S. treaties should be interpreted to be self-executing. (5) Second, scholars have attacked the constitutionality of the U.S. government's practice of declaring treaties to be non-self-executing via statements attached to Senate resolutions of advice and consent. (6)

Underlying both of these critiques of non-self-execution is a concern about the way in which non-self-executing treaties weaken U.S. compliance with its international obligations. In the context of human rights treaties, the non-self-execution doctrine has been cast as an obstacle to effective compliance with U.S. international obligations.

We take a different view. In past work, we have explained that non-self-executing treaties are both constitutionally legitimate and also offer many advantages to those seeking to accommodate robust international commitments with the requirements of the U.S. constitutional system. (7) In this paper, we go farther and argue that non-self-executing treaties could also benefit (rather than undermine) international cooperation by the United States.

International relations scholars have noted that the lack of a credible enforcement mechanism is an obstacle to successful international cooperation through agreements. In an anarchic international system, states will often demand credible commitments from their treaty partners as a price of cooperation. Seen in this light, non-self-execution makes the U.S. commitment to the treaty even more credible than if it had merely ratified the treaty via the Senate. Whereas courts have allowed treaties to be terminated by the President without the approval of the Senate, the President cannot unilaterally terminate a statute implementing a treaty obligation. Non-self-executing treaties thus represent a meaningfully deeper commitment to an international obligation than a standard self-executing U.S. treaty. This could (and in the case of the CWC, does) enhance prospects for international cooperation. This value in non-self-executing treaties is too often overlooked in critical commentary about non-self-execution.

This Article proceeds as follows. First, it discusses the Bond case and how the treaty at issue in Bond illustrates the practical importance of non-self-executing treaties in U.S. practice. It elaborates on this point in Part II by arguing that the CWC is the classic example of an important international treaty that could not have been properly implemented without separate legislation. Next, it offers a discussion of the academic criticism of non-self-execution as tending to undermine the United States' ability to comply with international obligations. It then responds to this criticism by exploring the ways in which non-self-executing treaties like the CWC can provide a level of credible commitment that facilitates international cooperation far more than is appreciated by many legal academic commentators.

1. BOND, THE CHEMICAL WEAPONS CONVENTION, AND NON-SELF-EXECUTION

   In 2006 and 2007, a Pennsylvania woman named Carol Bond attempted to assault her best friend, who was also her husband's lover and pregnant with his child, by spreading chemical poisons on her rival's mailbox and around her rival's home. (8) Although the case would normally have been subjected to state criminal law, federal prosecutors invoked the CWCLA to prosecute and eventually to convict Bond of possessing and using a chemical weapon. (9)

   Bond brought a number of challenges to her conviction, including a challenge to the CWCIA's applicability to her conduct, (10) and a challenge to the CWCIA's constitutionality as exceeding Congress's powers under Article I of the Constitution. (11) Both of her challenges were rejected by lower courts, (12) but she won a different result from the Supreme Court. (13)

   In his decision for the Court, Chief Justice Roberts held that Bond's charges under the CWCLA should be dismissed. (14) Moreover, five Justices agreed with him that the CWCIA provision used to prosecute Bond should not be interpreted to reach Bond's conduct. (15) Specifically, the majority opinion found that Bond's use of an arsenic-based chemical compound does not qualify as a "chemical weapon" as that term is used in the CWCIA. (16) While the chemical compound Bond used might qualify as a "toxic chemical" subject to the statute, (17) the Court held that Bond's crime could not qualify as the use of a "chemical weapon." (18) The ordinary meaning of "using a chemical weapon" did not fit a situation where Bond used a common chemical substance for personal revenge. (19) This reading was buttressed by the Court's desire to avoid interpretations of the statute that would create constitutional conflicts. In this case, the Court cited the background principle of federalism and the need to maintain the balance between state and federal authorities in criminal law enforcement. (20)

   The Court's reasoning did not draw unanimous support. Three Justices (Alito, Scalia, and Thomas) disagreed with the Court's reading of the CWCIA as not reaching Bond's conduct. (21) All three would have held that Bond's charges should nonetheless be dismissed because the CWCIA as applied to Bond exceeded Congress's enumerated powers under the Constitution. (22)

   Justice Scalia (joined by Justice Thomas) would have held that Congress's power to implement a treaty like the CWC is limited to its powers under Article I, Section 8. (23) Importantly, he wrote that Congress's "necessary and proper" power allows legislation to assist in the making of treaties, but not in the implementation of treaty obligations. (24) Because Congress would not otherwise have the power to criminalize Bond's conduct, he would have held the statutory provision of the CWCIA unconstitutional. Under Justice Scalia's reasoning, the CWCIA statute would have been unconstitutional even if the CWC's regulation of the subject matter was otherwise constitutional. (25) This result, according to Justice Scalia, still imposed important checks on the federal government's power to legislate over the states. (26) While the federal government could negotiate a self-executing treaty to comprehensively regulate an area of domestic law, such a treaty would need to acquire a supermajority of the Senate, agreement by a foreign nation, and could not be subsequently altered by normal legislation. But legislation implementing a non-self-executing treaty that broadly regulates an area of domestic law would allow "Congress to gain lasting and flexible control over the [domestic area of] law." (27) Importantly, Justice Scalia did not question the propriety or constitutionality of treating the CWC as a non-self-executing treaty.

   Justice Thomas added an opinion (joined by Justice Scalia in full and Justice Alito as to Parts I, II, and III) offering an originalist analysis of the scope of the treaty power. He argued that the treaty power itself (and not just implementing legislation) is subject to constitutional limitations arising out of federalism. (28)

   Much of the analysis in the Scalia and Thomas opinions was responding to the landmark 1920 Supreme Court decision in Missouri v. Holland, (29) which upheld a treaty with Canada that banned the killing of migratory birds. "It is obvious that there may be matters of the sharpest exigency for the national well being that an act of Congress could not deal with but that a treaty followed by such an act could," (30) Justice Oliver Wendell Holmes wrote for the Court in Missouri v. Holland. (31) All three concurring justices in Bond would have limited the effect of that opinion's discussion of the scope of the treaty power to dicta, or even overruled it. (32)

   As Justice Thomas argued, it is likely that the Founders' original understanding supports a federalism limitation on the treaty power itself. (33) While the Founders established a treaty power to unify foreign policy in Washington, they did not wish to expand federal power beyond the limitations...