Peaceful Poison?? [Bond v. United States Series]

The 1993 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, also known as the Chemical Weapons Convention (CWC), is an international arms control treaty. It is administered by the Organisation for the Prohibition of Chemical Weapons (the OPCW). As of September 30th, the OPCW determined that “58,172, or 81.71%, of the world’s declared stockpile of 71,196 metric tons of chemical agent have been destroyed.”

The aim of the Chemical Weapons Convention is “to eliminate an entire category of weapons of mass destruction by prohibiting the development, production, acquisition, stockpiling, retention, transfer or use of chemical weapons by States Parties.” In addition, “states Parties, in turn, must take the steps necessary to enforce that prohibition in respect of persons (natural or legal) within their jurisdiction.”

The case of Bond v. United States, to which the Supreme Court of the United States granted certiorari earlier this year, is set for arguments for November 5, 2013. Carol Anne Bond, a microbiologist, was convicted for attempting to poison her neighbor, and friend, Myrlinda Haynes upon discovering that Haynes was pregnant and that her [Bond’s] husband was the father of the baby.

Bond took 10-chlorophenoxarsine from Rohm & Haas (her place of employment), and purchased potassium dichromate. She then spread the mix on Haynes’s mailbox, car door handles, and house doorknob. Bond was indicted on two counts of “acquiring, transferring, receiving, retaining, or possessing a chemical weapon”, in violation of 18 U.S.C. § 229, the federal statute implementing the CWC treaty. She was additionally charged with two counts of theft of mail matter, in violation of 18 U.S.C. § 1708.

18 U.S.C. § 229 completely criminalizes and bans the use of chemical weapons, other than use for a “peaceful purpose.” Bond argues that her attempted poisoning was a “peaceful use of chemicals”. Bond further argues that 18 U.S.C. § 229 violates “fair notice” requirements and that it represents a breach of Tenth Amendment protection of state sovereignty. In May, the United States Court of Appeals for the Third Circuit affirmed Bond’s conviction. The court explained that the language of the act covers Bond’s criminal conduct and rejected her “peaceful use” argument pointing to the assaultive nature of her behavior. The court found that, while it agreed with Bond’s argument that “treaty-implementing legislation ought not…stand immune from scrutiny under principles of federalism”, it acknowledges that “the Convention is an international agreement with a subject matter that lies at the core of the Treaty Power.” In addition, the court found that the 1920 case of Missouri v. Holland “instructs that ‘there can be no dispute about the validity of [a] statute’ that implements a valid treaty.”

This case seems to illustrate an inevitable conflict between international cooperation and constitutional limitations on federal power.  In fact, the first question for the Supreme Court to review deals with this essential doctrine. What do you foresee the court ruling? Should there be a limit to the application of international treaties where such application might intrude on state powers? The Supremacy Clause of the Constitution establishes treaties as the supreme law of the land, should there be an exception to Tenth Amendment limitations on the federal government when it comes to international treaty obligations?




Bond v. United States

Third Circuit Decision

Chemical Weapons Convention


  1. Wow. This situation is riveting. It seems that what seemed like a domestic dispute and a planned “rash” that did not exactly go as planned, turned into – based on the actions of the United States Attorney’s Office in deciding to prosecute – a very important question about the separation of powers within our government. Apparently, the first question according to what I have briefly read on the subject, there is a significant difference between self-executing treaties and non-self executing treaties.

    The Supreme Court has recently held in Medellin v. Texas 552 U.S. 491, 504 (2008) that the Court “has long recognized the distinction between treaties that automatically have effect as domestic law and those that – while they constitute international law commitments – do not function by themselves as binding federal law.” Indeed, only when a treaty “operates of itself without the aid of any legislative provision” does it become the supreme law of the land. Foster v. Nielson, 27 U.S. 253, 314 (1829). In contrast, “[w]hen the stipulations are not self-executing, they can only be enforced pursuant to legislation to carry them into effect.” Whitney v. Robertson, 124 U.S. 190, 194 (1888).

    Thus, the argument is that the Chemical Weapons Convention is a treaty that falls in the non-self executing category because it does not directly affect the laws with respect to individuals; rather, the convention binds signatory states to refrain from actions that would violate the convention. It does not make any mention of the drafting or altering of a signatory’s domestic laws; and since congress has enacted legislation to carry this convention into effect, it is seemingly binding federal law. But why were federal prosecutors allowed to take a case involving a seemingly local crime? This legislation was obviously put into effect to curb violent chemical attacks, including, inter alia, terrorist attacks. So is the question whether the United States Attorney’s Office exceeded its jurisdictional limits, or whether Congress has impeded upon State Sovereignty, or a mix of both?

  2. I think that if a state (i.e. country) signs a treaty, then they should enforce that treaty as unified state law. I don’t see a Tenth Amendment issue. I think the Tenth Amendment has no bearing on Congress’s ability to legislate in furtherance of the Treaty Power in Article II, § 2 of the Constitution. Congress has the authority to enact treaty-implementing legislation under the Necessary and Proper Clause, and the fact that they have chosen to codify the Chemical Weapons Convention does not pose a threat to national sovereignty or the principles of federalism. In my opinion, I believe the Supreme Court should honor the notion of stare decisis and uphold Missouri v. Holland.

    At first, I laughed when I read that Bond argues she used the chemicals for a “peaceful purpose.” But looking at the lower court’s opinion, her argument does not seem to be substantive, but rather procedural. From a substantive stand point, there is no logical way that Bond can argue she attempted to use the weapons “peacefully.” In terms of jurisdiction however, her argument makes slightly more sense. As the lower court noted: “Bond argues that, by looking to the ‘peaceful purpose’ exception, we can employ a ‘common sense interpretation of § 229’ that avoids ‘mak[ing] every malicious use of a household chemical’ — including her own — a federal offense. All we need do is ‘interpret the statute . . . to reach [only the kind of acts] that would violate the Convention if undertaken by a signatory state.’ In other words, as Bond sees it, the modifier ‘peaceful’ should be understood in contradistinction to ‘warlike,’ and, when so understood, the statute will not reach ‘conduct that no signatory state could possibly engage in — such as using chemicals in an effort to poison a romantic rival,’ as Bond did.” Under this logic, her “peaceful purpose” argument makes some sense, because the Convention seems to be concerned with the actions of nation-states as opposed to individuals. Regardless, I still think the federal court has jurisdiction.

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