Abstract

CHALLENGING CHALLENGE INSPECTIONS: A FOURTH AMENDMENT ANALYSIS OF THE CHEMICAL WEAPONS CONVENTION

JONATHAN P. HERSEY AND ANTHONY F. VENTURA

Copyright 1998 Florida State University Law Review

It is the contention of the authors that, in ratifying the Chemical Weapons Convention and effectuating its verification requirements, the United States will jeopardize the protection of individual rights upon which our democracy was founded, and which the Treaty was designed to protect. Part II of this Article interprets the text of both the Treaty and the domestic legislation that would implement the Treaty in the United States in light of the individual constitutional rights guaranteed by the Fourth Amendment. Part II also discusses the scope of the Treaty's verification mechanisms, and specifically concentrates on the on-site and challenge inspections. The Treaty's verification regime, unlike other arms control treaties, allows foreign inspectors to search private businesses and residences in the United States. For this reason, Part III focuses on the applicability of Fourth Amendment legal analysis to the Treaty and its domestic Implementation Act. Part III also considers each of the potential legal justifications upon which a court or magistrate might rely when deciding whether to grant a search warrant to government officials seeking to perform a challenge inspection search. Part IV addresses the U.S. government's proposed solution for ensuring that it does not unintentionally abrogate its Treaty obligations by failing to fulfill its obligation to facilitate challenge inspections. This Article concludes that the Treaty, while founded upon the noble goal of ridding the world of these hideous weapons of mass destruction, is constitutionally infirm. The challenge inspections upon which the Treaty's effectiveness is based are made impractical by the necessity of their procedural compliance within the strictures of the Fourth Amendment.

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