Fourth and Fifth Amendment issues raised by Chemical Weapons Convention inspections

摘要

The Chemical Weapons Convention (CWC) offers a unique challenge to the United States system of constitutional law. This discussion is about the Fourth and Fifth Amendment issues raised by the CWC and about how federal implementing legislation can allow verification inspections to take place in the United States under the Chemical Weapons Convention while remaining in compliance with the Constitution. By implementing legislation, the author means a federal statute that would be enacted separately from Senate approval of the Convention itself. Although implementing legislation is a relatively unusual accompaniment to a treaty, it will be necessary to the CWC, and the Administration has submitted a bill that was under consideration in the last Congress and presumably will be reintroduced early next year. The Fourth and Fifth Amendment problems posed by the CWC arise from the verification inspection scheme embodied in the treaty. The CWC depends heavily on on-site inspections to verify compliance with its key requirements. These include destroying all chemicals weapons stockpiles and bringing potential chemical weapons precursors under international control. The Convention contains four distinct kinds of inspections: systematic inspections of chemical weapons storage and destruction facilities, routine inspections of various declared facilities, challenge inspections, and a variant on challenge inspections in cases of alleged use of chemical weapons. All inspections are supposed to be only as intrusive as necessary to carry out the Convention. These inspections will be carried out by inspectors employed by the Organization for the Prohibition of Chemical Weapons (OPCW), located in The Hague, which is responsible for enforcing the Convention. Generally, the inspected State Party is permitted to assign observers to accompany the inspectors.