Guest Post: Self-Executing Treaties, Criminal Law, and Bond v. United States

[William S. Dodge is Professor of Law and Associate Dean for Research at the University of California, Hastings College of the Law. He and Professor Sarah H. Cleveland filed an amicus brief in Bond v. United States arguing that the Offenses Clause provides an additional basis for upholding the constitutionality of the Chemical Weapons Convention Implementation Act.]

The difference between signature and ratification was not the only point of misunderstanding about treaties at the oral argument in Bond v. United States. Both counsel for the petitioner Paul Clement and some of the Justices also seemed confused about self-executing and non-self-executing treaties. Under U.S. law, the Chemical Weapons Convention (CWC) is a non-self-executing treaty. Article VII(1) provides that “[e]ach State Party shall, in accordance with its constitutional processes, adopt the necessary measures to implement its obligations under this Convention” and, in particular, shall “prohibit natural and legal persons anywhere on its territory . . . from undertaking any activity prohibited to a State Party under this Convention, including enacting penal legislation with respect to such activity.” Justice Kagan asked if the treaty could have been self-executing, a possibility Mr. Clement seemed willing to entertain (transcript p. 7). Justice Scalia seemed to think that self-executing treaty would be better because it would require implementation by the states of the United States (transcript p. 33), though he was mistaken because a self-executing treaty binds the judges of every state under the Constitution’s Supremacy Clause. Justice Breyer seemed to think that a self-executing treaty would be worse because it would cut out the House of Representatives (transcript p. 48). And Solicitor General Verrilli made the point that if “a self-executing treaty that requires the President to negotiate and two-thirds of the Senate to ratify it, can impose an obligation of that kind, then it has to be the case that a non-self-executing treaty . . . that has . . . the additional structural protection of the passage of legislation by the Senate and the House and being signed into law by the President, can do what the self-executing treaty can do” (transcript pp. 32-33). Verrilli’s point echoes one that has been made by Rick Pildes, among others, in response to Nick Rosencranz’s reading of the Treaty Power.

The problem with all of this is that it makes little sense in the context of a criminal case like Bond. Article VII(1) of the CWC expressly requires States Parties to pass “penal legislation.” While it is possible that the U.S. might have complied by adopting civil “penal” legislation, the expectation was clearly that use of chemical weapons by individuals would be a criminal offense, which is what Congress made it. But the general rule in the United States is that a self-executing treaty cannot create a federal criminal offense. See Restatement (Third) of Foreign Relations § 111 cmt. i; Hopson v. Kreps, 622 F.2d 1375, 1380 (9th Cir. 1980). In Henfield’s Case (1793), the federal government did assert authority to prosecute an individual for violating U.S. treaties without implementing legislation. But this prosecution failed, Congress passed implementing legislation (the Neutrality Act) the following year, and the Supreme Court’s subsequent decisions in United States v. Hudson, 11 U.S. 32 (1812), and United States v. Coolidge, 14 U.S. 415 (1816), have been thought to close the door not just on federal common law prosecutions but on prosecutions for treaty violations in the absence of implementing legislation. See Louis Henkin, Foreign Affairs and the United States Constitution 479 n.105 (2d ed. 1996) (citing Hudson and Coolidge). To be sure, Congress may pass a criminal statute that simply incorporates the terms of a treaty, see United States v. Smith, 18 U.S. 153 (1820) (upholding statute that punished piracy “as defined by the law of nations”), and the Supreme Court has looked to treaties to define violations of the laws of war that may be punished by military commission, see Ex Parte Quirin, 317 U.S. 1 (1942); In re Yamashita, 327 U.S. 1 (1946). But the simple answer to Justice Kagan’s question is that this treaty could not have been self-executing in the United States in the sense of creating a federal criminal offense.

That is not to say that the Constitution is particularly resistant to imposing criminal obligations based on treaties. To the contrary, as Sarah Cleveland and I have argued in a draft article that Duncan Hollis and John Dehn have already posted about, the Constitution doubled-down on Congress’s power to use criminal law to implement treaties by authorizing Congress to pass such legislation not just under the Necessary and Proper Clause but also under the Offenses Clause.

But the general rule that a self-executing treaty cannot create a federal criminal offense does undercut one of Mr. Clement’s central points at oral argument. Clement argued repeatedly that Bond is different from Missouri v. Holland “because there the treaty itself prohibited individual action” (transcript pp. 17-18; see also id. pp. 4, 18-19, 23, 26, 53). As Marty Lederman has noted, that is simply untrue. The 1916 Migratory Birds Convention, 39 Stat. 1702, established close seasons for hunting and stated that the taking of nests and eggs “shall be prohibited.” But Article VIII of the Migratory Birds Convention expressly obligated the States Parties “to take, or propose to their respective appropriate law-making bodies, the necessary measures for insuring the execution of the present Convention.” In other words, it did precisely what Article VII(1) of the CWC does by requiring legislative implementation.

Requiring legislative implementation is a perfectly sensible way to write treaties. It accounts for the fact that domestic legal systems give effect to treaties in different ways. Some countries give treaties direct effect even in criminal law, and have done so with respect to the CWC. Others require implementing legislation in both civil and criminal cases. And some—like the United States—distinguish between the civil and the criminal, allowing self-execution for one but not the other. It would be ironic for the Supreme Court to seize upon the fact that the CWC does not directly criminalize the individual use of chemical weapons as basis to conclude that Congress exceeded its Article I powers, when the United States does not permit such self-execution in the criminal context and the CWC was drafted to accommodate that very fact.