|As part of the debate over ratification of the Chemical Weapons Convention, questions have been raised about the treaty’s constitutionality. Prominent legal scholars have reviewed the treaty and concluded that it is fully consistent with the U.S. Constitution. They strongly support the Convention and its provisions.
Opponents have suggested that enforcement, in order to be effective, will necessarily impinge on Fourth and Fifth Amendment rights. Attorney General Janet Reno said concerns that the treaty may be unconstitutional are “unfounded.”
The Attorney General continues,“Let there be no doubt, the Department of Justice stands fully behind both the goals and the specific terms of the CWC. The Convention, along with the proposed legislation, strikes the proper balance between effective efforts to eliminate the scourge of chemical weapons and to preserve our constitutional rights. Over the course of the past four years, the Justice Department has closely scrutinized CWC and has assisted in the drafting of its implementing legislation. Our focus has been consistently on the necessity of adherence to constitutional requirements.”
Specifically, concerns have been raised that the Convention will authorize warrantless, non-consensual searches or that searches will be conducted without probable cause. Opponents also speculate the provisions of the Convention will compel inspected parties to incriminate themselves. The Chemical Weapons Convention and the draft implementing legislation contemplate no such circumstances. C. Boyden Gray, Counselor to the President under George Bush, said, “...the protections of the Constitution will always trump the obligations of an international convention....” In this case, the Constitution and the Convention are not at odds.
The Convention expressly provides that:
“In meeting the requirement to provide access ... the inspected State Party shall be under the obligation to allow the greatest degree of access taking into account any constitutional obligations it may have with regard to proprietary rights or searches and seizures.”
|Abram Chayes, Professor of Law Emeritus, Harvard Law School, writes, “this provision ... was inserted at the insistence of the United States.... The plain meaning of these words, which seems too clear for argument, is that the United States would have no obligation under the Convention to permit access to facilities subject to its jurisdiction in violation of the provisions of the Fourth Amendment. It was the clear understanding of the negotiators that the purpose of the provision was to obviate any possibility of conflict between the obligations of the United States under the Convention and the mandate of the Fourth Amendment. The Convention ... is thus fully consistent with U.S. constitutional requirements. ... I am convinced that the prompt ratification of the Chemical Weapons Convention is overwhelmingly in the security interest of the United States and should not be derailed by constitutional objections that are so plainly without substance.”
Regarding this same provision Louis Henkin, University Professor Emeritus, Columbia University School of Law added, “As applied to the United States, that provision is properly interpreted to mean that the United States must provide access as required by the Convention, but if the Constitution precludes some access in some circumstances, the United States must provide access to the extent the Constitution permits.”
David Koplow, Professor of Law, Georgetown University wrote, “the Chemical Weapons Convention is the first arms control accord that has been driven to strike a balance between the interests of openness and secrecy in the domestic arena. Both elements are essential to success in this type of endeavor, and in my view the treaty brokers an eminently reasonable compromise. Reasonableness, it has so often been observed, is ‘the touchstone of the Fourth Amendment,’ and provides the basis for the bottom-line judgement that the treaty ... can withstand any constitutional challenge.”
The American Bar Association, in its endorsement of the Convention, “urged the U.S. Senate to give its advice and consent as soon as possible....”