International Law and Chemical Weapons

This article originally appeared in the Huffington Post on Nov. 15, 2013.

By Karen Alter

With the daunting, expensive task of dismantling and destroying Syrian chemical weapons still in process, a U.S. Supreme Court ruling currently under deliberation may even more deeply jeopardize the tenuous push and pull between the United States and Syria.

The issue arises because of a bizarre and salacious case of a spurned wife, Carol Bond, who used a poorly concocted chemical substance to poison her husband's pregnant lover.

Conservative members of the Supreme Court appear inclined to use the Bond case to undermine the standing of treaties in the American legal system.

Should the court go in this direction, it could easily render more fragile one of the few tools the U.S. has to pressure Syria.

If Bond had been charged under state law, she would have ended up with a prison sentence of three months to two years. But state officials refused to intervene, leaving it to Federal officials to act. Postal inspectors videotaped Bond spreading the strange orange substance on the lover's mailbox, and the task of prosecuting Bond fell to federal officials, who invoked a legal provision enacted as part of the U.S. ratification of the Chemical Weapons Treaty.

The quirky facts of Bond's case make it easy to lose sight of the important issues at stake. Bond's lawyers are questioning the extent to which the Chemical Weapons Treaty applies in the United States.

This is the very same treaty the United States is invoking to challenge Syria's use of chemical weapons on civilians. Those who mail anthrax or other poisons will try to draw on an exculpating Bond precedent, but even more worrisome would be foreign governments who find that their constitution limits their ability to investigate or prosecute the use or spread of chemical weapons.

The real concern is not, however, the Chemical Weapons Convention, a treaty that most Americans like. Rather, the Supreme Court is likely to use the Bond case to pronounce limits on Congress' ability to implement international treaties. The ruling is likely to defend states rights from federal treaty-making encroachment, while limiting the reach of international law in the United States.

Given how hard it is for anyone to have their case heard by the Supreme Court, one really must ask why the Supreme Court so much wants to rule on this case.

The Supreme Court heard the Bond case earlier this month for the second time. The first Bond case was argued in 2011. The Department of Justice sought to distance itself from an argument that Bond could not question the constitutionality of the implementing law, by 'confessing error.'

Usually if the government refuses to defend the point of law Bond was challenging, the case goes away. But the Supreme Court kept Bond's argument alive by appointing a lawyer to defend the Government's abandoned argument. This second time around, the Supreme Court has asked for arguments on the fundamental question of whether Federal Treaty making powers can displace state prerogatives.

Make no mistake, the target in the Bond case is international law in general. To be sure, there are important legal issues worth pondering. One can question whether Bond should be prosecuted under the Federal law in question, and one can ask how we balance Bond's rights, states rights, and treaty obligations. Indeed it is not unusual for a Supreme Court to find constitutional limits to international law at home. The German Constitutional Court, and other constitutional courts, have found such limits.

The problem is not the question so much as the framing of the issue by conservatives. There really is no choice to make between the US Constitution and international law, and there is not even a choice in this case. The state refused to sanction Bond's actions, thus one must wonder what state right was violated?

The conservative challenge to international law is deeper and wider than this case suggests, and in the Justice Roberts Court, conservatives have finally found a receptive ear for their challenges. Why Bond?

The salacious facts are a big part of the attraction. Conservatives are looking for visible platforms through which to question and discredit international law and the continued commitment of Presidents -- from Ronald Reagan, to George Bush, to President Obama -- to work with international law.

The Bond case looks like prosecutorial overkill, which suggests that the global black helicopters are descending on hapless spurned lovers around America. The great irony, however, is that international law is the only tool that exists to address the issues that these very same conservatives care about.

In a world governed by the absolute sovereignty conservatives prize, every country has the right to sell chemical and nuclear weapons to whomever, to close their markets to American products, to seize American property without compensation, to persecute and expel religious and other types of minorities, and to harbor those who plan attacks on America.

If the United States Supreme Court suggests that constitutional barriers render the government unable to prosecute those who disseminate or use chemical weapons, we hand a legal resource to governments that prefer to look the other way on a broad range of issues. Syrian officials can even at a later date argue that someone else resurrected and used chemical weapons and there was nothing the government could do about it.

This is the wrong time to validate these sorts of arguments.

- Karen Alter is a professor of political science and law at Northwestern University.