Edwin Williamson, a former State Department Legal Adviser, had an interesting comment at Lawfare earlier this week on the Bond v. United States treaty power case. Like me, he favors a middle ground that would reject the national government’s power in the particular case, which lacks connection to matters of international concern, without imposing wide-reaching restrictions on the treaty power.
He makes a point that I had not seen emphasized before. One question in the case is whether the chemicals used by Ms. Bond were “chemical weapons” for purposes of the Chemical Weapons Convention. I think not (or at least it is ambiguous whether they do), for various reasons, but Mr. Williamson adds this observation: Article IV(9) of the Convention requires that
Any chemical weapons discovered by a State Party after the initial declaration of chemical weapons shall be reported [to the Organisation for the Prohibition of Chemical Weapons], secured and destroyed in accordance with Part IV (A) of the Verification Annex.
Mr. Williamson asks (facetiously) whether anyone thinks Ms. Bond’s chemicals needed to be reported under Article IV(9). And of course no one does. It would be absurd to think that every local private misuse of toxins would need to be reported to the international organization dedicated to the eradication of chemical weapons. (Other parts of the referenced Verification Annex also make clear that the Convention is talking about chemical stockpiles suitable for military or terrorist purposes).
This points the way to one of several “middle ground” solutions: where ambiguous, a treaty should not be read to encompass matters of purely local concern.
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.