by Duncan Hollis
Lots of commentary today here and elsewhere on yesterday's oral arguments in Bond v. United States, with vote-counters quick to predict the Court will retreat from Missouri v. Holland and the question is only how much. I have views on the merits, but, frankly I'm having trouble getting passed the fact that two Supreme Court justices, the Solicitor General, and one of his predecessor's, Paul Clement, seem to not understand how treaty-making works.
Simply put, throughout the argument, there were statements indicating a real misunderstanding of what it means for the United States to sign a treaty like the Chemical Weapons Convention. To be clear, sometimes U.S. signature of a treaty can have immediate legal effect -- what's known as definitive signature -- which is most often witnessed in bilateral agreements on topics within the President's executive powers. But for centuries now (actually as a byproduct of the U.S. revolution itself), the general rule for multilateral treaties is that a State signing a treaty does not bind the State to the treaty's provisions; a further act of ratification is required. It is the State's deposit of this instrument of ratification for a treaty that's in force which triggers the obligation to comply with the treaty's requirements. Signing treaties subject to ratification -- what is known as "simple signature" serves several useful purposes -- it signals the conclusion of negotiations, the signing State's intention to commence domestic procedures to join the treaty, and the identify of those who can participate in preparatory meetings. But it does not obligate the State to implement, observe or otherwise comply with any, let alone all, of the treaty's articles. The only international legal obligation a signatory State assumes is one not to defeat the treaty's object and purpose pending its consent to the treaty (in which case it is bound to comply with it) or an indication that it does not intend to ratify the treaty.
But no one yesterday showed any sign that they understood the way treaty signature operates. Take Chief Justice Roberts opening inquiry to Solicitor General Verrilli (see transcript p. 27):
General, let's suppose there's a multilateral treaty, the -- the international convention to ensure that national legislatures have full authority to carry out their obligations, i.e., that the national legislature has the police power. And Congress passes a statute saying we have the authority to prosecute local crimes pursuant to this international convention that the President has signed. Any problem with that? (emphasis added)
Well, yes. If the President had merely signed the treaty and not actually ratified it, the treaty power would not afford any basis for Congress' legislation and this would be a straight-forward Article I case. Indeed, it would be like Congress deciding to pass legislation implementing the Kyoto Protocol or the Rome Statute to the International Criminal Court -- two treaties a U.S. President has signed -- without any further approval by the Senate, let alone ratification by the President (a ratification which, I'd note, the President is not required to do even if the Senate gives its advice and consent to ratification).
Of course, the Chief Justice probably meant a treaty that the President had "ratified" -- and Verrilli certainly took the question that way. But I'm worried that both were a bit oblivious to the distinction. I can only imagine what people would say if a Supreme Court Justice has posed a hypo that confused a bill with a statute during an oral argument. And if that's not OK, why is it OK to make such a simple mistake about treaty-making?
Now, if this were an isolated incident, I'd be willing to write it off as simply a shorthand-error that both sides ducked around to get at the real -- and certainly important -- issues at the heart of the Bond case. But, this wasn't the only misuse of treaty signature yesterday. More details, after the jump . . .