Constitutionality of U.S. Statute Enacting the Chemical Weapons Convention in the United States

See:

• Constitutionality of U.S. Statute Enacting the Chemical Weapons Convention 2
• Constitutionality of U.S. Statute Enacting the Chemical Weapons Convention 3

In 2011, the United States filed a supplemental brief and a supplemental reply brief in the U.S. Court of Appeals for the Third Circuit in an appeal brought by a defendant who was convicted under the U.S. statute enacted to implement U.S. obligations under the Chemical Weapons Convention, 18 U.S.C. § 229-229F. United States v. Carol Anne Bond, No. 08-2677 (3d Cir. 2011). The district court had denied defendant Carol Anne Bond’s motion to dismiss chemical weapons charges on the basis that the statute was not a valid exercise of federal authority under the U.S. Constitution. After Bond was convicted, she appealed, renewing arguments that 18 U.S.C. § 229 was unconstitutional.

In its September 16, 2011 supplemental brief, the United States argued that the Chemical Weapons statute was a valid exercise of both the Commerce Clause and Treaty Power of the Constitution. The second section of the brief, discussing the Treaty Power as a basis for enacting the Chemical Weapons Statute, is excerpted below with most footnotes and citations to the record omitted. The full text of the brief is available at www.state.gov/s/l/c8183.htm.

To the extent the Court finds it appropriate to reach the issue, the district court was correct in dismissing Bond’s constitutional challenge to 18 U.S.C. § 229(a)(1) on the basis that the legislation was a valid exercise of Congress’s authority to implement treaties under the Necessary and Proper Clause.

1. The Constitution empowers the President, “by and with the Advice and Consent of the Senate, to make Treaties . . . .” U.S. Const. art. II, § 2. That power “is not limited by any express provision of the Constitution, and, though it does not extend ‘so far as to authorize what the Constitution forbids,’ it does extend to all proper subjects of negotiation between our government and other nations.” Asakura v. City of Seattle, 265 U.S. 332, 341 (1924), quoting Geofroy v. Riggs, 133 U.S. 258, 267 (1890); see also Geofroy, 133 U.S. at 267 (“it is not perceived that there is any limit to the questions which can be adjusted touching any matter which is properly the subject of negotiation with a foreign country”). Indeed, “States may enter into an agreement on any matter of concern to them, and international law does not look behind their motives or purposes in doing so. Thus, the United States may make an agreement on any subject suggested by its national interests in relations with other nations.” United States v. Lue, 134 F.3d 79, 83 (2d Cir. 1998) (citation omitted) (finding that the International Convention Against the Taking of Hostages (“Hostage Taking Convention”), T.I.A.S. No. 11,081 (Dec. 17, 1979), was well within the scope of the treaty-making power); Restatement (Third) of For. Rel., sec. 302, cmt. c.
The Chemical Weapons Convention falls well within that authority. Foreclosing “for the sake of all mankind” the “possibility of the use of chemical weapons” and promoting international cooperation in the field of chemical activities are objectives for which international action is obviously appropriate. Chemical Weapons Convention, pmbl. 6, 9. Further, proliferation concerns are certainly “a matter of grave concern to the international community.” Lue, 184 F.3d at 83. In short, the threat that chemical weapons present to the safety and other interests of American citizens presents a foreign policy matter expressly assigned by the Constitution to the Executive under its treaty-making power.

As a party to the Chemical Weapons Convention, the United States undertook specific obligations in support of the Convention’s broad objective “to exclude completely the possibility of the use of chemical weapons, through the implementation of [its] provisions.” Chemical Weapons Convention, pmbl. ¶ 6. Achieving that goal requires preventing both states and non-state actors from developing, producing, and using chemical weapons, as the Convention makes clear. In addition to the prohibitions on state action found in Article I, Section 1 of the Convention, Article VII, Section 1 of the Convention requires that
[e]ach State Party shall . . . adopt the necessary measures to implement its obligations under this Convention. In particular, it shall:

(a) Prohibit natural and legal persons anywhere on its territory or in any other place under its jurisdiction . . . from undertaking any activity prohibited to a State Party under this Convention including enacting penal legislation with respect to such activity;
(b) Not permit in any place under its control any activity prohibited to a State Party under this Convention; and
(c) Extend its penal legislation enacted under subparagraph (a) to any activity prohibited to a State Party under this Convention undertaken anywhere by natural persons, possessing its nationality, in conformity with international law.
Thus, the signatories viewed prohibiting both natural and legal persons from undertaking activities prohibited to a State Party as a “necessary measure” to implement their obligations under the Convention. Chemical Weapons Convention, art. VII.

These types of provisions are also common in international agreements that seek to limit or eradicate the use of certain types of weapons, and fall squarely within the Treaty Power. See, e.g., Biological Weapons Convention, art. IV (requiring each signatory to “take any necessary measures to prohibit and prevent the development, production, stockpiling, acquisition or retention of the agents, toxins, weapons, equipment and other means of delivery specified [in the Convention] within the territory of such State, under its jurisdiction or under its control anywhere”); Mines Protocol, art. 14 (requiring each signatory to “take all appropriate steps, including legislative and other measures, to prevent and suppress violations of this Protocol by persons or on territory under its jurisdiction or control”).

2. To fulfill its obligations under the Chemical Weapons Convention, the United States Congress enacted implementing legislation—including 18 U.S.C. § 229(a)(1)—that closely tracks the requirements of Article VII of the Convention. See Chemical Weapons Convention Implementation Act of 1998, Pub. L. No. 105-277, 112 Stat. 2681-2856. Congress had full authority under the Necessary and Proper Clause to do so. As the Supreme Court explained in Missouri v. Holland, 252 U.S. 416 (1920), “[i]f the treaty is valid there can be no dispute about the validity of the [implementing] statute under Article I, § 8, as a necessary and proper means to execute the powers of the Government.” Id. at 432; accord United States v. Belfast, 611 F.3d 783, 805-06 (11th Cir. 2010) (holding, on the basis of Holland, that the Torture Act, 18 U.S.C.

§§ 2340-2340A, constituted a “necessary and proper” implementation of the U.N. Convention Against Torture), cert. denied, 131 S. Ct. 1511 (2011); Lue, 134 F.3d at 82-84 (relying on Holland to sustain the Hostage Taking Act, 18 U.S.C. § 1203, as “necessary and proper” to implement the Hostage Taking Convention). See also Neely v. Henkel, 180 U.S. 109, 121 (1901) (the Necessary and Proper Clause “includes the power to enact such legislation as is appropriate to give efficacy to any stipulations which it is competent for the President by and with the advice and consent of the Senate to insert in a treaty with a foreign power”).

Moreover, as the court explained in Belfast, in determining whether the Necessary and Proper Clause grants Congress authority to enact legislation implementing a treaty, the word “necessary” does not mean “absolutely necessary.” 611 F.3d at 804, quoting Comstock, 130 S. Ct. at 1956. All that is required is that the implementing legislation bear a rational relationship to the treaty.13