Bond v. U.S. and the Treaty Ties that Bind

Columbia Law School Professor Sarah H. Cleveland Sheds Light on a Novel Constitutional Clause Allowing the U.S. to Punish Treaty Violations.

New York, November 11, 2013—Friendship, sex, betrayal. The facts of Bond v. U.S., a case argued before the U.S. Supreme Court on Nov. 5, bring to mind the plot of a movie. But, according to Columbia Law School Professor Sarah H. Cleveland, they also implicate a novel constitutional clause enacted to ensure the U.S. does not have to rely on individual states to enforce international law and treaty commitments.

The case centers on Carol Anne Bond, a 42-year-old microbiologist who tried to poison her best friend after learning the friend had given birth to a baby fathered by Bond’s husband. Bond was sentenced to six years in prison for violating the Chemical Weapons Convention Implementation Act, which was passed by Congress to make that international treaty enforceable in the U.S.
Bond claims the act is unconstitutional as applied to her because it encroaches on states’ rights. She and her attorneys argue that if the underlying treaty and statute were meant to apply to her conduct, then the statute exceeds Congress' constitutional authority by treading on a purely local matter.
But Cleveland, director of the Human Rights Institute and former counselor on international law to the legal adviser at the U.S. State Department, believes a win for Bond could reverse the clear intention of the U.S. Constitution: to leave enforcement of treaty obligations in the hands of the federal government. Cleveland attended the Nov. 5 argument in the Bond case.
In an amicus brief based on a forthcoming draft article, Cleveland and her co-amicus, UC Hastings College of the Law Professor William S. Dodge, agree with U.S. Solicitor General Donald B. Verrilli Jr. ’83 that Congress had the power to implement the Chemical Weapons Convention based on a number of constitutional authorities. But, unlike the Obama Administration, Cleveland and Dodge argue these authorities include the so-called Offenses Clause, which was included in the Constitution after the national government proved unable to secure state cooperation in complying with international laws and treaties under the Articles of Confederation. The clause gives Congress the power to “define and punish piracies and felonies committed on the high seas, and offences against the law of nations.”
The Offenses Clause is one of the only constitutional provisions that expressly authorizes Congress to impose punishment.
“Fulfilling the United States’ international obligations is always a matter of national concern, and never purely a local matter,” Cleveland and Dodge write in their amicus brief, adding elsewhere that Bond’s argument “turns the constitutional design on its head, and invites the precise state of affairs that the Framers sought to escape.”
Past academic scholarship, Cleveland and Dodge write in their article, mistakenly assumes the Offenses Clause only gives Congress the power to enforce customary international law. But Cleveland and Dodge argue the clause also applies to treaties such as the one at issue in Bond’s case.
Cleveland, the Louis Henkin Professor of Human and Constitutional Rights, is a noted expert in international law and the constitutional law of U.S. foreign relations. From 2009 to 2011, she served as counselor on international law to the legal adviser at the U.S. Department of State.