International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Spring 2014 Issue

Private international law Discourse


Bond v. United States – The United States Supreme Court and the Future of Implementing Private International Law in the United States

Carolyn A. Dubay

By Carolyn A. Dubay, Associate Editor, International Judicial Monitor and Assistant Professor of Law, Charlotte Law School

On June 2, 2014, the Supreme Court of the United States issued its opinion in Bond v. United States relating to the domestic applicability of the Chemical Weapons Convention, which Congress implemented through the Chemical Weapons Convention Implementation Act of 1998.  The question presented to the Supreme Court was whether the Convention, as implemented by Congress, was intended to apply to purely local crime.  In Bond, a jealous wife had maliciously spread chemical agents around the home of her husband’s lover, resulting in minor injuries to the victim.  Normally, in the American federal system, such a crime could only be penalized under state law pursuant to a state’s general police powers – a power that Congress lacks.  Under the Supreme Court’s (in)famous decision in Missouri v. Holland, however, Congress can exceed the normal limitations on its legislative power under Article I of the U.S. Constitution when implementing a valid treaty.  Bond urged the Supreme Court to reconsider Missouri v. Holland as an intrusion into state powers under the 10th Amendment to the U.S. Constitution, which serves to protect state sovereignty in our federal system.

To the chagrin of many international lawyers and scholars, the Supreme Court in Bond did not address the continuing vitality of Missouri v. Holland.  Instead, the Court exercised its prerogative to avoid this difficult constitutional question, and resolved the issue on the narrower ground of whether the Implementation Act applied to Bond’s conduct.  To this question, and in an opinion written by Chief Justice John G. Roberts, Jr., the Supreme Court answered with a resounding “no.”

At first blush, the actions of Bond to poison her husband’s lover seem to have little to do with the status of private international law in America.  But the decision is extremely important because it signals the Supreme Court’s approach to the interpretation of federal laws that implement treaty obligations touching traditional state interests.  This has significant implications for the implementation of private international law treaties because they largely relate to matters generally (and sometimes exclusively) litigated in America’s state courts, such as family matters and contract disputes. 

The difficulty that federalism issues present in the implementation of private international law is playing out in the ongoing efforts to domesticate the 2005 Convention on Choice of Court Agreements (COCCA).  Because COCCA obligates courts in the United States, whether federal or state, to enforce choice of court agreements in international business contracts regardless of forum non conveniens concerns, implementation has focused on how federal power can be exercised to direct procedures in sovereign state courts.  Nearly 10 years after the United States signed COCCA, the mechanics and details of how it will work in state courts remain elusive.  The original approach of the Department of State Advisory Committee on Private International Law (ACPIL) and the COCCA Study Group was to implement COCCA using a “cooperative federalism” approach through parallel federal and


state implementing laws.  After the failure of the stakeholders to reach consensus, however, that approach has now been effectively abandoned in favor of an entirely federal implementation scheme modeled after the Federal Arbitration Act provisions implementing the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

To the extent that COCCA implementation will now likely take a purely federal path, the Supreme Court’s decision in Bond warns that when Congress implements treaty obligations and intends to supplant traditional state power, it must clearly express its intent to do so.  The Supreme Court emphasized that when a federal court interprets a federal law, it will presume that Congress did not intend to upset the “constitutional balance” between federal and state authority.  As such, a federal court must be certain that Congress intended to displace state power before finding that federal law over­rides it.  This “background assumption” is essential, according to the Supreme Court, to manifest the goals of our Constitution to prevent the accretion of power in a single authority at the expense of individual liberty. 

Moreover, the Supreme Court subtly reminded Congress that even if a treaty obligation could allow Congress significant authority to legislate in areas of typical state authority, it is not obligated to do so under our constitutional scheme when implementing a treaty.  Notably, the Chemical Weapons Convention, like COCCA, does not prescribe how a signatory state should implement the obligations, and is “agnostic between enforcement at the state versus federal level,” as noted in Chief Justice Roberts’ opinion in Bond.  In an abstract manner, at least, the Supreme Court in Bond suggested that some treaty obligations could be enforced through state law.  While this is certainly consistent with the “cooperative federalism” approach initially followed to implement COCCA, practical experience seems to show that creating 51 different implementation laws among vastly differing political, social, economic and cultural landscapes may not be the most effective way to realize the Framers’ intent to let the federal government take the lead in developing and enforcing America’s international obligations, especially with regard to international commerce.  

There is no doubt that American federalism presents what at times seems to be an insurmountable obstacle to federal objectives.  While this is not usually a problem in the conduct of U.S. foreign affairs as a general matter, it is an ongoing issue with the domestic enforceability of international obligations.  But, the tension between federal and state power, like the tension between the three branches of federal government, is a necessary component of our constitutional design and history.  As James Madison wrote in Federalist No. 51, “[i]n the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments.  Hence a double security arises to the rights of the people.”  As such, whether at a conference table in The Hague, in study groups convened by the State Department, in the backrooms of Congress, or in a state assembly, federalism remains the ultimate constraint on the future of private international law in America.

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© 2014 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
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