In noting the principal amicus briefs in Bond v. United States, I overlooked this one on behalf of Chemical Weapons Convention Negotiators and Experts. As described in this news release from Indiana University:
In the brief, the arms control experts support the U.S. government’s position that, properly interpreted, the treaty requires states parties, including the United States, to apply its prohibitions on development, possession and use of chemical weapons to individuals, such as Bond, who obtain and use toxic chemicals as weapons. The legislation implementing the treaty in the U.S. fully complies with this obligation by including penal provisions applicable to individuals regardless of their motive or the impact of their actions.
According to the brief, the Chemical Weapons Convention “takes a deliberately comprehensive approach” under which “all toxic chemicals constitute chemical weapons and must be banned for both state and non-state use unless they are possessed and used for certain enumerated purposes and in quantities consistent with those purposes.” The experts urge the Supreme Court to reject Bond’s argument that her use of toxic chemicals to harm another person represents a “peaceful purpose” under the treaty and is not subject to the treaty’s prohibitions. The brief emphasizes that the negotiators of the treaty applied a comprehensive strategy, in the words of the the agreement, “to exclude completely the possibility of the use of chemical weapons.”
In terms of the constitutional question, the brief observes that both the Executive Branch and Congress subjected the Chemical Weapons Convention to careful constitutional scrutiny and concluded that it created no constitutional problems, including under federalism principles. The experts reject Bond’s claims that U.S. implementation of the treaty could have relied on state law, and the brief argues that the federal government’s foreign policy and national security interests in eliminating development, possession and use of chemical weapons in any context require federal legislation to create a uniform, consistent set of legal prohibitions, including penal sanctions.
(via How Appealing).
I suspect that the Supreme Court may be interested in a narrow decision in favor of Ms. Bond, to avoid reaching the significant federalism questions that would arise if the Convention is interpreted to apply to the very localized conduct at issue in the case. One way to do that is to read the treaty narrowly not to reach local conduct.
NOTE: This article was originally posted at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.