Academic journal article Notre Dame Law Review

Bond, the Treaty Power, and the Overlooked Value of Non-Self-Executing Treaties

Academic journal article Notre Dame Law Review

Bond, the Treaty Power, and the Overlooked Value of Non-Self-Executing Treaties

Article excerpt

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. …

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