Amicus Curiae Brief — United States v. Morrison

Nos. 99-0005 and 99-

NOY 7 9 “309

IN THE

Supreme Court of the Hrfter ister: BRI, US

OCTOBER TERM, 1999

>

CHRISTY BRZONKALA, St

Petitioner,

—

ANTONIO MORRISON, et al.,

Respondents.

_>

UNITED STATES OF AMERICA, ms

Petitioner,

—_—V—

ANTONIO MORRISON, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF AMICI CURIAE ON BEHALF OF

INTERNATIONAL LAW SCHOLARS AND

HUMAN RIGHTS EXPERTS IN SUPPORT

OF PETITIONERS

CATHY ALBISA JENNY GREEN

RHONDA COPELON* PETER WEISS

*Counsel of Record Center for Constitutional

International Women’s Rights

Human Rights Law Clinic 666 Broadway

City University of New York New York, New York 10012

School of Law (212) 614-6431

65-21 Main Street

Flushing, New York 11367

(718) 340-4300

Attorneys for Amici Curiae

INTERNATIONAL LAW SCHOLARS &

HUMAN RIGHTS EXPERTS

AS AMICI CURIAE

KELLY DAWN ASKIN

CHARLOTTE BUNCH

ANDREW BYRNES

ROGER S. CLARK

REBECCA J. COOK,

LISA A. CROOMS

ANTHONY D'AMATO

NORMAN DORSEN

ALDA FACIO

RICHARD FALK

JOAN FITZPATRICK

LYNN FREEDMAN

LORENA FRIES-MONLEON

PAMELA GOLDBERG

DEAN CLAUDIO GROSSMAN

BERTA ESPERANZA HERNANDEZ-TRUYOL

PAUL HOFFMAN

STEVEN D. JAMAR

DOREAN M. KOENIG

MAIVAN CLECH LAM

HOPE LEWIS

GAY MCDOUGALL

ALICE MILLER

VAHIDA NAINAR

JORDAN PAUST

LINDA J. POOLE

CATHERINE POWELL

JOHN QUIGLEY

MICHAEL RATNER

WILLIAM SCHABAS

MARTIN SCHEININ

RALPH G. STEINHARDT

BETH STEPHENS

DONNA J. SULLIVAN

RICHARD WILSON

TABLE OF CONTENTS

TABLE OF AUTHORITIEG...............cccccococcscososceseseeses iv

gE ee l

I. VAWA Is A ConsTITUTIONAL EXERCISE OF THE

CONGRESSIONAL "TREATY POWER" WHICH

IMPLEMENTS U.S. OBLIGATIONS UNDER THE

INTERNATIONAL COVENANT ON CIviL AND

POLITICAL RIGHTS (ICCPR) To REDRESS GENDER-

A. Congress Is Constitutionally Authorized To

Enact Legislation To Fulfill U.S. Treaty

Re ieitateeetedilitadincieiaritihatniehiictita tees 3

B. The ICCPR Guarantees The Right To Be

Free From Gender-Based Violence and

Obligates States Parties To Provide

Remedies For Private And Official Gender-

Redress Privately Inflicted Gender-

2. The ICCPR Protects the Right To Be

Free From Gender-Based Violence................ 7

Il.

II.

. The ICCPR Calls For Judicial Remedies,

Such As VAWA, To Redress Gender-Based

WEIN, cccnssustenusenininsibeentniiabpidinintinaidiaibemetisinaiabemdets

. The Executive’s Identification of VAWA

As Responsive to U.S. Obligations Under

The ICCPR Should Be Given Great Weight........

CONGRESS Has CONSTITUTIONAL AUTHORITY TO

Enact VAWA TOIMPLEMENT INTERNATIONAL

A. The Define and Punish Clause of the U.S.

Constitution Authorizes Congress To Enact

. The Necessary and Proper Clause

Authorizes Congress To Confer Article III

Jurisdiction On The Federal Courts To

ENSURING THE RIGHT TO BE FREE FROM

GENDER BASED VIOLENCE Is AN OBLIGATION

UNDER INTERNATIONAL CUSTOMARY LAW...............-

. U.S. Courts Have Consistently Recognized

The Appropriate Sources For Discerning

CO CR encccinemmmnmmenee

. Gender-Based Violence Violates A

Customary Norm of International Law...............

15

22

22

24

oe

C. The Executive's Recognition Of Its Human

Rights Obligation To Redress Gender-Based

Violence Through VAWA Is Entitled To

EA RS EES AE) a

BOTH TREATY AND CUSTOMARY LAW SUPPORT

INTERPRETING THE COMMERCE CLAUSE AND

THE FOURTEENTH AMENDMENT AS CONFERRING

AUTHORITY ON CONGRESS TO PROVIDE

REDRESS FOR GENDER-BASED VIOLENCE. ................

27

TABLE OF AUTHORITIES

CASES PAGE

Asakura v. City of Seattle, 265 U.S. 332

GERRI cncenesvensansntpednntcareemmetnnseagpesiecbemnnmeennemeqnasementinn 3

Banco Nacional de Cuba v. Sabbatino,

FO Ce i ccttrnccrestticisnccecrseeenenitince 21

Blackmer v. United States, 284 U.S. 421 (1932)............ 21

Boos v. Barry, 485 U.S. 312 (1988) ..............ccccceeceeeeees 19

The Charming Betsy, 6 U.S. (2 Cranch) 64 (1804) ...... ... 2,28

Chisholm v. Georgia, 2 U.S. (2 Dall.) 419(1793) ........ 21

Coger v. B'd of Regents of the State of Tenn’, 154

LSE a

Crawford v. Davis, 109 F.3d 1281 (8th Cir. 1997) ....... 4

E.E.0.C. v. Wyoming, 460 U.S. 226 (1983) ..............-+. +

Filartiga v. Pena-Irala, 630 F.2d 876

nee passim

Finzer v. Barry, 798 F.2d 1450, 1455 (D.C. Cir.

1986), rev'd on other grounds, Boos v.

Barry, 485 U.S. 312 (1988). ...........c.cccseeeseeesseres 18,19

iv

er ee

Forti v. Suarez-Mason, 672 F.Supp. 1531 (N.D.

ERE SRR Se 21

Frend et al. v. United States, 100 F.2d 691 (D.C.

Cir. 1938) cert. denied 306 U.S. 640 (1939)...... 19,20

Garcia-Mir v. Meese, 788 F.2d 1446 (11th Cir.

REISS RCNA SEAL SE ae OTe 21,28

Graham v. Deere, 383 U.S. 1 (1965) ........2...0...0cccccccee00e 20

Jewish Defense League Inc., et al v. Washington et

al, 347 F.Supp. 1300 (D.D.C. 1972)................. 19

Jones v. Mayer, 392 U.S. 409 (1968) ............cccccccccceeeees 15

Kadic v. Karadzic, 70 F.2d 232 (2nd Cir. 1995) ,

cert. denied, Karadzic v. Kadic, 518 U.S.

OE 21

Kolovrat v. Oregon, 366 U.S. 187 (1961) ...................... 16,

Lauritzen v. Larsen, 345 U.S. 571, 578 (1953) ............. 28

Mathews v. Diaz, 426 U.S. 67 (1976).............ccc0ccccceee000- 28

McCulloch v. Maryland, 17 U.S. 316 (1819)................ 20

Missouri v. Holland, 252 U.S. 416 (1920)..................... 1,3,28

The Nereide, 9 U.S. (9 Cranch) 388(1815) ................. 21

O'Connor v. U.S., 479 U.S. 27, 33 (1986) ..........c0ccc0000 17

Vv

The Paquete Habana, 175 U.S. 677 (1900) ................... 2,21,22

Planned Parenthood of Southeastern Penni. v.

Casey, 505 U.S. 833 (1992) .........:cccccceeceeeeeneeenees 15

Ramirez v. Puerto Rico Fire Serv., 715 F.2d 694

CDAD Gs TGIED censccnsensticsnccsscesssctentssiinanessensseovess 4

Sumitomo Shoji America, Inc. v. Avagliano, 457

Ge BP GE cccncccsccsscccnsccsneqsesnenasccsntesssnentecense 16

Trible v. Stone, 187 F.Supp. 483 (D.D.C. 1960)........... 19

United States v. Arjona, 120 U.S. 479 (1887) ..............-. 18, 19, 21

Verlinden B.V. v. Cenral Bank of Nigeria, 461

CD, Ga i iccccesnccrcsccsnnnanansnnreesyiecsateasscceesscese 18

Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796) ................. 21

Xuncaz v. Gramajo, 886 F.Supp. 162 (D. Mass.

BIR vccccecstcccsnnssensesecsntsmenascitaimemmeemeammanntniesaeets 21,22

Yakus v. United States, 321 U.S.. 414 (1944)................. 20

INTERNATIONAL CASES

Aydin v. Turkey, Eur. Ct. H.R., 25/09/1997............2.040+. 14

Prosecutor v. Akayesu, Case No. 1CTR-96-4-T

(Judgment Sept. 2, 1998) ............-.cccecceeeeeerenees 14

vi

a

Prosecutor v. Celebici, Case No. IT-96-21-T

(Judgement Nov. 16, 1998) 200.0000... 14

Prosecutor v. Furndzija, Case No. 1T-95-17/1-T

(Judgment Dec. 10, 1998) 0.0. cccceccoeee. 14

Velasquez Rodriguez Case, Inter. Am. Ct. H.R,

Ser. C, No. 4, OAS/Ser.L/V/IIL.19, doc. 13

X & Y v. the Netherlands, Series A. No. 91,

Application No. 8978/80 Eur. Ct. J. 8

EHIRR 235 (1986)..............0.ccccccscccsssseesseseseeseseeees 6

CONSTITUTIONS, STATUTES, RULES and

LEGISLATIVE REPORTS

We COMME, BIG, By BB vcccccccccoccecncescccsoseccececceoceveccoececesece 20

140 Cong. Rec. H4724-02 (1994) oo... occccccccccccceeeeeee 13

H.R. Rep. No. 1487, 94th Cong., 2d Sess. (1976) ........ 18

Statute of the International Court of justice,

Art. 38, 59 Stat. 1055 (1945) 0000. 22

S. REP. NO. 103-138 (1993) 0000.0... c.ccccccccccscseseeeereceerres 11,12,13

S. REP. No. 102-249- (1992) ..000......cccccccccccceccscesececeneeees 19

UNITED NATIONS AND REGIONAL

DOCUMENTS AND REPORTS

vii

American Convention on Human Rights, entered

into force on July 18, 1978, Series No.

36, at 1, Organization of American

States, Official Record, OEA/Ser.

L/V/AIL.23 Document Revision 2, 1144

8 5 RE RE eee re Oe

Beijing Declaration and the Platform for Action,

General Assembly, Report of the Fourth

World Conference on Women, U.N.

DOC. A/CONF.177/20 (17 OCT. 1995)...........

Compilation Of General Comments and General

Recommendations Adopted By Human

Rights Treaty Bodies, U.N. Doc.

HRI/GEN/1/Rev.2 (29 March 1996)..................

Concluding Observations of the Human Rights

Committee: United States of America,

CCPR/C/79/Add.50 (3/10/95) ............ccccceeeeeeeeees

Convention Against Torture and Other Cruel,

Inhuman or Degrading Treatment or

Punishment, entered into force Nov. 20,

I GD cecnenscernsctensetincienntiangnetaienetinncnseneen:

Convention on the Elimination of All Forms of

Discrimination Against Women, entered

into force, Sept. 3, 1981, 1249 U.N.T.S.

Convention on the Elimination of All Forms of

Race Discrimination, entered into force

Vili

passim

-

. gery

Jan. 4, 1969 and ratified by U.S. on Oct.

221, 1994, 660 U.N.T.S. 195 (1966) ................. 8

Declaration on the Elimination of Violence

Against Women, GAOR Res. 104, 48th

Sess. U.N.. Doc. A/Res/48/104 (1994)............... passim

European Convention for the Protection of

Human Rights and Fundamental

Freedoms, entered into force Sept. 3, 1953,

ee iiniticindiacicniorasnnciaiasieticininetenmensens 6

Inter-American Convention on the Prevention,

Punishment, and Eradication of Violence

Against Women, opened for signature 9

I les 10, 11, 24

International Covenant on Civil and Political

Rights, ratified by U.S. June 8, 1992,

ELI passim

Report of the Special Rapporteur on Systematic

Rape, Sexual Slavery, and Slavery-Like

Practices During Armed Conflicts, 50th

sess., U.N. GAOR, Human Rts. Comm.,

U.N. Doc. E/CN.4/1996/53 (1996) ..................02. 14

Report of the Special Rapporteur on Violence

Against Women, Its Causes and

Consequences, 52nd Sess., U.N.GAOR,

Hum. Rts. Comm., U.N. Doc.

| 11, 12,14

ix

Report on the Situation of Human Rights in Haiti,

Inter-Am. C.H.R., OEA/Ser.L/V/11.88,

Bee, BD Cie CHD cccscncnnttsnnsececncenentencssnenneeseseme 14

Summary Record of the 1401st Meeting: United

States of America, CCPR/C/SR.140

CRTIBEIIED ccccectccrerssscscsttnnancstennarnsranismmamen 16

Summary Record of the 1405th Meeting: United States of

America, CCPR/C/SR.1405 (24/04/95) 16

Summary of the Record of the Human Rights

Committee,U.N.Doc. CCPR/C/79/Add.95

(1998) (Algeria) ............ccsscscessssssssescssssseeeseeenssee 9

Summary of the Record of the Human Rights

Committee,U.N. Doc. CCPR/C/79/ Add.99

pee NMOL EE 9

Summary of the Record of the Human Rights

Committee, U.N. Doc.

CCPR/C/79/Add.107 (1999) (Costa Rica) ....... 9

Summary of the Record of the Human Rights

Committee, U.N. Doc. CCPR/C/79Add.98

(1998) (Hcelamd) ........ccccsssssscsssssssssesseeecesesessssseee 9

Summary of the Record of the Human Rights

Committee,U.N. Doc. CCPR/C/79/Add.94

I ie 9

Summary of the Record of the Human Rights

Committee,U.N. Doc.

CCPR/C/79/Add.102 (1998) (Japan) ................ 9

x

Summary of the Record of the Human Rights

Committee, U.N. Doc.

CCPR/C/79/Add.109 (1999) (Mexico) ............

Summary of the Record of the Human Rights

Committee, U.N. Doc. CCPR/C79/Add.89

TE AT ITE

Vienna Convention on the Law of Treaties,

entered into force Jan. 27, 1980, U.N. Doc.

A/Conf.39/27 at 289 (1969), 1155

I IIE diniccslaclinietenieihctlistsicteaisesnnitndinenminesanines

Vienna Declaration and Programme of Action,

General Assembly, World Conference on

human Rights, U.N. Doc. A/Conf.157/23

a See

MISCELLANEOUS

Hilary Charlesworth, The UN Declaration on

Violence Against Women, AM. Soc. OF

Se

Hilary Charlesworth & Christine Chinkin, The

Gender of Jus Cogens,

I icin

Rhonda Copelon, Recognizing the Egregious In

The Everyday: Domestic Violence As

Torture,, 25 COL. HUMAN Rts. L. Rev 291-

RG arate NE eae

Katherine M. Culliton, Finding a Mechanism to

Enforce Women's Right to State Protection

from Domestic Violence in the Americas, 34

Harv. Int’ L. J. 507 (1993) Theodor

Meron, Rape as a Crime Under

International Humanitarian Law, 87 A.J.1.L.

424 (1993Michellene Elizabeth Hearn, A

Thirteenth Amendment Defense of the

Violence Against Women Act, 146 U.

PENN. L.REV., 1097 (1988) .............ccsccceseeeeereeeees

Louis Henkin, Richard C. Pugh, Oscar

Schachter, Hans Smit, INTERNATIONAL

RST Se

Joyce McConnell, Beyond Metaphor: Battered

Women, Involuntary Servitude and the

Thirteenth Amendment, 4 YALE J. L. &

FEMINISM 207 (1992) ...........ccccccccseeseeeeeeeeeeeeneeees

Theodor Meron, Rape as a Crime Under

International Humanitarian Law, 87

A.S.LL. 424 (1993) ...00..0ccrcccreccsrorccveecscrcesessessorees

Jordon J. Paust, The Other Side of Right: Private

Duties Under Human Rights Law, 5 HARV.

oe. SS | |

Celina Romany, State Responsibility Goes

Private: A Feminist Critique of the

Public/Private Distinction in International

Human Rights Law in Resecca J. COOK,

ED., HUMAN RIGHTS OF WOMEN: NATIONAL

xii

AND INTERNATIONAL PERSPECTIVES 85-115

RRR SA Nap ar url Oe

Dorothy O. Thomas and Mishele E. Beasley,

Domestic Violence as a Human Rights

Issue, 15 HUM. RTS. Q. 36 (1993) o..o.oeccccccccoeees

Katherine Adrienne Wing, A Critical Race

Feminist Conceptualization of Violence:

South African and Palestinian Women, 60

ALB. 1. REV. 943 (1997) .......2...ccccccccccoscccceeseeseees

MANFRED Nowak, U.N. CONVENTION ON CIVIL AND

POLITICAL RiGuts, CCPR COMMENTARY

On the Record Briefing by Director Bonnie J.

Campbell, Violence Against Women

Office, Department of Justice. Sept. 12,

ESSEC

RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW

OF THE UNITED STATES (1986) .00..0..00....ccccccccceees passim

U.S. Dep't of Justice, Excerpts From Attorney

General Janet Reno's Testimony Before the

Senate Judiciary Committee May 15, 1996

(visited Nov. 9, 1999

<<http://www.doj.gov/vawo/ag796.htm>>........

White House, Office of the Vice President, Vice

President Gore Announces $223 Million in

Grants to Help Detect and Stop Violence

Against Women (visited Nov. 9, 1999)

xiii

<<http:///www.pub.whitehouse.gov/uri.res

/12R?urn:pdi://om.eop.gov.us/1999/3/2/4.te

XiV

f

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,

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INTEREST OF THE AMICI CURIAE

Amici curiae are 36 international legal scholars and human

rights experts.' Amici include law professors and scholars

who have studied and contributed as jurists to the development

of the international law respecting human rights and the

recognition of violence against women as a violation of human

rights. Some of the amici currently hold positions as

independent experts elected to human rights treaty bodies of

the United Nations and the Inter-American system that are

charged with implementing human rights, and one has recently

completed a report on violence against women as a United

Nations Special Rapporteur. The amici also include human

rights experts and advocates, who have dedicated their lives to

building the legal foundetions of universal human rights

protections, and have participated in various ways to the

drafting and adoption of major UN and Inter-American

instruments recognizing violence against women, inflicted by

private persons as well as by officials as one of the paramount

violations of international human rights today. Finally, there

are among the amici international law scholars who have

focused on the relation between the constitutional powers of

the federal government and the international commitments of

the United States.

Amici underscore the importance of sustaining Congressional

power to enact the Violence Against Women Act (VAWA),

and particularly the federal civil rights action, as fundamental

to fulfilling the United States’ mutual binding commitments

under international law both to the elimination of violence

against women and to respect for the rule of law.

' The background and work of the amici is contained in the attached

letter to the Clerk of the Court. No counsel for any of the parties

authored any part of this brief and there were no monetary

Seatdiedtensta Un qeapusction end eubuitesion of Oo biel

SUMMARY OF ARGUMENT

Congress has unquestioned authority to enact legislation to

meet both international treaty and customary law obligations,

and need not state the sources of its authority for legislation to

be valid. U.S. ratification of the International Covenant on

Civil and Political Rights (ICCPR), and other treaties,

empowers Congress to enact legislation implementing the

treaty. The text of the treaty, in conjunction with subsequent

unanimous and binding interpretations by the international

community, make clear that the ICCPR requires the U.S. to

provide protection from gender-based violence from both

private persons and public officials. Moreover, that the

Executive Branch has confirmed this view in international

proceedings is entitled to great deference.

In addition, the emergence in customary international law of a

clear norm recognizing women's right to live free of gender-

based violence, provides additional constitutional authority for

the enactment of the federal civil rights cause of action at issue

in this case. Under Article III, section 2, clause 1 of the

Constitution, the federal courts have authority over all cases

arising under the “laws of the United States" which include

customary international law. In particular, Congress has

authority to enact VAWA under both the Define and Punish

Clause and under its power under the Necessary and Proper

Clause to enact legislation enabling the federal courts to

exercise its Article III jurisdiction over violations of

customary international law.

It is also well-settled and fundamental to the US constitutional

system that, whenever possible, domestic law should be

interpreted so as to enable the U.S. to fulfill its international

obligations. This principle strongly supports an interpretation

of both the Commerce Clause and Section 5 of the Fourteenth

Amendment that would confirm Congressional authority to

enact VAWA and similar implementing legislation

2

wee SR eR PFS TI

A Fy ye

ARGUMENT

L VAWA Is A CONSTITUTIONAL Exercise OF THE

CONGRESSIONAL "TREATY POWER" WHICH

IMPLEMENTS U.S. OBLIGATIONS UNDER THE

INTERNATIONAL COVENANT ON CrviL AND POLITICAL

Ricuts (ICCPR) To Repress GenpDEK-BASED

VIOLENCE.

A. Congress Is Constitutionally Authorized

To Enact Legislation To Fulfill U.S. Treaty

Obligations.

It is well established that Congress has the authority to enact

legislation that is “necessary and proper” to meet the United

States’ obligations under ratified treaties, and that the existence

of a valid treaty gives Congress authority to legislate over the

subject matter thereof. Missouri v. Holland, 252 U.S. 416

(1920). This is so whether or not the Constitution provides

another source of Congressional power. Jd. at 432 ("[I]t is not

lightly to be assumed that, in matters requiring national action,

a ‘power which must belong to and somewhere reside in every

civilized government’ is not to be found.") (internal citations

omitted). See also, Asakura v. City of Seattle, 265 U.S. 332,

341 (1924) (The treaty power “extend{s] to all proper

subjects of negotiation between our government and other

nations.”).

Congress need not state the ground of authority for legislation

so long as a court is able to “discern some legislative purpose

or factual predicate that supports the exercise of that power.”

E.E.0.C. v. Wyoming, 460 U.S. 226, 244, n.18 (1983). This

principle applies whether Congress has identified a different

source of authority for the legislation, or none at all. /d at

n.18. Indeed, as long as “Congress had such authority as an

objective matter, whether it also had the specific intent to

legislate pursuant to that authority is irrelevant.” Crawford v.

Davis, 109 F.3d 1281, 1283 (8 Cir. 1997); Coger v. Bd. of

Regents of the State of Tenn., 154 F.3d 296, 302 (6 Cir. 1998);

Ramirez v. Puerto Rico Fire Serv., 715 F.2d 694, 698 (1* Cir.

1983).

B. The ICCPR Guarantees The Right To Be Free

From Gender-Based Violence and Obligates

States Parties To Provide Remedies For

Private And Official Gender-Based Violence.

The International Covenant on Civil and Political Rights

(“ICCPR” or “Covenant”), which was ratified by the United

States on June 8, 1992,' guarantees a range of rights that

parallel Fourteenth Amendment rights and encompass the night

to be free from gender-based violence. Moreover, under the

Covenant, the U.S. committed itself to prevent not only

official action perpetrating violence against women, but also to

protect individuals from privately-inflicted violence and to

provide remedies therefor. The VAWA cause of action is such

a remedy.

A treaty is interpreted according to the “ordinary meaning” of

its terms in their “context{s] and the light of its object and

purpose;” moreover, under international law, subsequent

agreements and State practice are particularly important

determinants of treaty interpretation. * All of these sources

' International Covenant on Civil and Political Rights, ratified by U.S.

June 8, 1992 , 999 U.N.T.S. 171 (1966) [hereinafter “ICCPR at __].

? Vienna Convention on the Law of Treaties, entered into force Jan. 27,

1980, at art. 31, U.N. Doc. A/Conf. 39/27 at 289 (1969), 1155 U.N.T.S.

331, [hereinafter “Law of Treaties at__”). (“The Vienna Convention on the

4

-

oe eee

confirm that the Covenant guarantees the right to be free from

gender-based violence.

1. The ICCPR Requires States Parties to

Redress Privately Inflicted Gender-

Based Violence.

The ICCPR requires the U.S., as a State Party, to protect

against both official and private violations of the Covenant.

Art. 2(1) of the ICCPR obligates the State to both “respect

and to ensure to all individuals within its territory . . . the

rights recognized in the present Covenant, without distinction

of any kind, such as... sex. . .” ICCPR at art. 2. (emphasis

added). The Human Rights Committee, which is the treaty

body charged with interpreting the Covenant,’ explained in

General Comment 3 that the States’ obligations under the

treaty are “not confined to the respect for human rights,

[rather, States Parties] have also undertaken to ensure the

enjoyment of these rights to all individuals under their

jurisdiction.” United Nations, Compilation of General

Comments and General Recommendations Adopted by Human

Rights Treaty Bodies, U. N. DOC HRI/OEN/I/Rev.2 (29

March 1996) at Part I, Comment 3(1) [hereinafter

"Compilation at Part__, Comment (or Recommendation)

___"]. The term “respect” in human rights treaties imposes a

Law of Treaties, concluded in 1969, is the principle authoritative source of

the law of treaties...”); LOUIS HENKIN, RICHARD C. PUGH, OSCAR

SCHACHTER, HANS SMIT, INTERNATIONAL LAW 416 (2nd ed. 1987).

(“[T)he Department of State, in submitting the Convention to the Senate,

stated that the Convention ‘is already recognized as the authoritative guide

to current treaty law and practice.’"(citing S. EXEC. Doc. L. at 1 (1971)));

see also, Jordon J. Paust, The Other Side of Right: Private Duties Under

Human Rights Law, 5 HARV. HUM. RTS. L. J. 51, 308, 381-82.(1992)

{hereinafter "J. Paust, Private Duties at__").

> ICCPR at art. 40(4).

negative obligation; “respect” used in this context refers to the

State obligation to refrain from directly interfering with the

exercise of a right or infringing upon a right. The term

“ensure,” however requires a State, inter alia, to protect

individuals from private actors infringing on the right; thus, it

imposes a positive obligation on States.*

General Comment 4 makes clear that the guarantee of equal

enjoyment of the rights enumerated in Article 3 of the

Covenant “requires not only measures of protection but also

affirmative action designed to ensure the positive enjoyment of

rights.” Compilation at Part 1, Comment 4(2). General

Comment 18 requests States Parties to report to the Human

Rights Committee any problems of “discrimination . . .

practiced either by public authorities, by the community, or by

private persons or bodies." Compilation at Part 1, Comment

18 (9) (emphasis added).°

The “respect” and “ensure” language also appears in the American

Convention on Human Rights, entered into force July 18, 1978, Series

No. 36, at 1, Organization of American States, Official Record, OEA/Ser.

L/V/1.23 Document Revision 2, 1144 U.N.T.S. 123, and the European

Convention for the Protection of Human Rights and Fundamental

Freedoms, entered into force Sept. 3, 1953, 213 U.N.T.S. 222. In both

systems, “ensure” has been similarly interpreted to require prevention and

punishment of private interference with protected rights. See, Velasquez

Rodriguez Case, Inter-Am. Ct. H.R. 35, Ser. C, No.

4,0AS/Ser.L/V/IIL.19, doc. 13 (1988); X & Y v.The Netherlands, Series

A. No. 91, Application No. 8978/80 Eur. Ct. J. 8 EHRR 235 (1986)

(State must afford remedies for private sexual assault of a mentally

disabled person.).

* In addition, the Human Rights Committee adopted the definition of

discrimination found in the Convention on the Elimination of All Forms

of Discrimination Against Women, entered into force Sept. 3, 1981, 1249

U.N.T.S. 20378 [“hereinafter "Women's Convention at __”], which

includes “any distinction, exclusion or restriction made on the ‘basis of sex

which has the effect or purpose of impairing or nullifying the recognition,

enjoyment, or exercise by women, on a basis of equality of men and

women, of human rights and fundamental freedoms in the political,

6

ewer

The unanimous approval by the U.N. General Assembly of

the Declaration on the Elimination of Violence Against Women,

U.N. GAOR Res. 104, 48th Sess., U.N. Doc. A/Res/48/104

(1994) (hereinafter "Declaration on Violence at___") explicitly

and unequivocally interprets the ICCPR to require states to

guarantee the right to be free from gender-based violence. See,

e.g., Filartiga v. Pena-lrala, 630 F.2d 876, 879 (2nd Cir.

1980) (relying on the Declaration Against Torture as

interpreting the ICCPR).

2. The ICCPR Protects the Right To Be

Free From Gender-Based Violence.

Under the Covenant, gender-based violence is an extreme form

of gender based discrimination which also violates a broad

range of other fundamental rights, largely paralleling

Fourteenth Amendment rights, privileges and immunities.

The ICCPR requires a State Party to respect and ensure all

rights free from all forms of discrimination, including

distinction on the basis of sex, ICCPR at art. 2; to “undertake

to ensure the equal right of men and women to the enjoyment

of all civil and political rights” protected by the treaty, id at

art. 3; and to ensure "[a]ll persons shall be equal before the

courts.” /d. at art. 14. Furthermore, article 26 of the ICCPR

guarantees not only equal protection of the laws, but also

“equal and effective protection against discrimination.” Jd at

art. 26. ° ICCPR article 23 provides that State Parties “shall

economic, social, cultural, civil or any other field.” /d. at art. | (emphasis

* These articles of the ICCPR provide parallel and intersecting protection

for discrimination on the basis of race. In addition, the Convention on the

Elimination of All Forms of Race Discrimination, entered into force Jan.

4, 1969 and ratified by the U.S. on Oct. 21 1994, 660 U.N.T.S. 195

(1966) [hereinafter "CERD at__"), would provide further constitutional

7

take appropriate steps to ensure equality of rights and

responsibilities of spouses as to marriage and its dissolution.”

Id. at art. 23. Finally, non-discrimination based on sex is a non-

derogable right under the ICCPR. Jd. at art. 4(1).

The Covenant also explicitly protects the rights to life, liberty

and security of person; the freedom from slavery or servitude

in all its forms; torture, and other cruel inhuman or degrading

treatment or punishment; the rights to liberty of movement

and choice of residence; the rights to freedom of thought,

belief, expression, information and association; the right to

protection of and equality in family life; and the right to take

part in the conduct of public affairs.’ Separately and together

these rights provide broad protection against gender-based

violence, including, but not limited to, the type of gender-

based violence for which VAWA provides a civil cause of

action.

The Declaration on Violence interprets the ICCPR by

announcing “a clear statement of the rights to be applied to

ensure the elimination of violence against women in all its

forms.” Declaration on Violence at Preamble. Significantly, it

cites the ICCPR as the source of the State obligation to

prohibit gender-based violence and repeats many of the above-

listed rights verbatim. See Declaration on Violence at art. 3.8

basis for Congressional enactment of VAWA to the extent that racial

discrimination affects access to justice in the state courts for victims of

gender violence.

’ See ICCPR at art. 6; art. 9; art. 8; art. 7; art. 12, art. 18, art. 23, and art.

25.

* Specifically, the rights listed in the Declaration on Violence are the

right to life, equality, liberty and security of the person, equal protection

under the laws, freedom from all forms of discrimination, highest

attainable standard of physical and mental health, just and favorable work

conditions, and the right to not be subjected to torture, or other cruel,

The U.N. Human Rights Committee, when considering States’

reports on compliance,’ routinely inquires of States Parties

about the incidence of and measures taken to address gender-

based violence. In its comments on the U.S. report, discussed

below, the Human Rights Committee specifically lauded

VAWA as an important step to meeting ICCPR obligations.

See infra, §_____. In response to quadrennial State reports

over the last two years, the Human Rights Committee has

made it clear to dozens of states that providing remedies for

gender-based violence is mandated under the Covenant.'®

Additionally, the Human Rights Committee gives particular

weight to the jurisprudence of the U.N. Committee on the

Elimination of All Forms of Discrimination Against Women

(“CEDAW”),'' which interprets the Convention on the

Elimination of All Forms of Discrimination Against Women,

entered inio force 3 Sept. 1981, 1249 U.N.T.S. 20378

(“hereinafter "Women's Convention at __”].'? CEDAW issued

inhuman or degrading treatment or punishment. See Declaration on

Violence at ari. 3.

* Pursuant to ICCPR art. 40.

10

See, e.g., Summary of the Record of the Human Rights

Committee,U.N. Doc. CCPR/C/79/Add.95 (1998) (Algeria); U.N. Doc

CCPR/C/79/ Add.99 (1998) (Belgium); U.N. Doc. CCPRICHIS/AGd.107

(1999) (Costa Rica); U.N. Doc. CCPR/C/79Add.98 (1998) (Iceland);

U.N. Doc. CCPR/C/79/Add.94 (1998) (italy); U.N. Doc.

CCPR/C/79/Add.102 (1998) (Japan); U.N. Doc. CCPR/C/79/Add.109

(1999) (Mexico); U.N. Doc. CCPR/C79/Add.89 (1998) (Zimbabwe).

'' Compilation at Part 1, Comment 1.

? Under the Convention, CEDAW is charged with reviewing State reports

and making “suggestions and general recommendations based on the

examination of reports and information received from State parties.”

Women's Convention at art. 18-21.

a General Recommendation on “Violence Against Women”

which both recognizes gender-based violence as an extreme

form of discrimination, and affirms that the specific rights

contained in the ICCPR are applicable to gender-based

violence. Compilation at Part IV, Recommendation 19(7).'*

The Inter-Americarr Convention on the Prevention,

Punishment, and Eradication of Violence Against Women,

(hereinafter “Belem do Para”) adopted by acclamation of the

General Assembly of the Organization of American States,

also cites these rights.'* These interpretive developments, as

well as other State practice, discussed in Section ___, infra,

demonstrate the uncontested application of the ICCPR to

gender-based violence.

Thus, under the ICCPR, the State failure to protect against

gender-based violence violates a broad range of equality rights

applicable to both the public and private life. The legislative

history of VAWA details the myriad of ways in which such

violence operates as a tool of discrimination, as well as how

gender-based discrimination obstructs women’s access to the

state courts. S. Rep. No. 103-138, 42-43(1993) [hereinafter

"S.R. at __"]. Likewise, the Declaration on Violence and

CEDAW Recommendation on violence against women

recognizes violence against women as a severe form of

discrimination. Compilation at Part TV, Recommendation 19.

’ General Recommendation 19 finds that the “right to life,” the “right not

be subject to torture or cruel, inhuman or degrading treatment or

punishment,” the “right to equal protection,” and the right to liberty and

security of person,” all protect against gender-based violence. Compilation

at Part IV, Recommendation 19(7).

© Inter-American Convention on the Prevention, Punishment, and

Eradication of Violence Against Women, opened for signature 9 June

1994, 3 IHRR 232 at {hereinafter “Belem do Para at __").

10

Gender-based violence in intimate relationships, having both

the purpose and effect of subordinating the woman, nullifies

the right to equality in marriage and domestic partnerships.

S.R. at 36-39. Creating a federal cause of action, like VAWA,

is an effort both symbolically and practically to repudiate

acceptance of and end impunity for gender-based violence,

which is indispensable to ensuring the equality of women. S.R.

at 36-39.

The right to life, guaranteed by Art. 6 of the ICCPR, is also

clearly violated by State failure to protect against gender-based

violence. The Human Rights Committee makes it clear that

the right to life applies to de facto systemic causes of death

(and not simply the death penalty), to official as well as

private encroachment and requires states to adopt positive

measures. Compilation at Comment 6. The legislative history

of VAWA contains findings that gender-based "violence

accounts for a significant number of murders in this country

and that one-third of all women who are murdered die at the

hands of a husband or boyfriend." S. R. at 42-43, 129'5

The right to liberty, protected by Article 9, is related to the

"the right to liberty of movement and freedom to choose hjer]}

residence under Article 12'° as well as a broad range of other

15

See also Report of the Special Rapporteur on Violence Against

Women, its Causes and Consequences, at | 60, 52nd Sess., U.N.GAOR,

Hum. Rts. Comm., U.N. Doc. E/CN.4/1996/53 (1996) ("[WJomen

victims of domestic violence are being murdered by their batterers with

increasing frequency . . .Studies conducted in . . . the United States of

America document the reality of femicide committed within the domestic

sphere.").

‘© The Human Rights Committee's General Comment 8 on Article 9

makes clear that this right applies not only to official detention, but also

to “other cases in which an individual claims to be deprived of h{er] liberty

in violation of the Covenant." Compilation at Comment 8.

11

explicit rights. Accordingly, State failure to protect against

gender-based violence may violate the right to liberty because

it reinforces "a battered woman's fear of precipitating deadly

violence against herself or her children [that] may make escape

dangerous." Report of the Special Rapporteur on Violence

Against Women, its Causes and Consequences, at § 46, 52nd

Sess. U.N. GAOR, Hum. Rts. Comm., U.N. Doc.

E/CN.4/1996/53 (1996). Indeed, the Senate Report specifically

found that "[g]ender-based violent crimes and fear of gender-

based crimes restrict movement." S.R. at 39. Additionally,

gender-based violence -- both intimate violence and that

inflicted by acquaintances and strangers in workplaces, schools

and the community -- is directed at controlling women's

actions and statements. It prevents and inhibits them from

traveling, working, and participating in public life, S.R. at 37,

42-43. It also obstructs their ability to obtain information or

an education, or to express thoughts or beliefs, all of which are

aspects of equality and liberty protected by the Covenant. /d.

at 43-44.

The right to security of person, also guaranteed by Article 9 of

the I, is not limited to formal deprivation of liberty, but

protects physical and mental integrity from invasion by both

official and private persons. See MANFRED Nowak, U.N.

COVENANT ON CIVIL AND POLITICAL RIGHTS: CCPR COMMENTARY

162-166 (1993) [hereinafter "Nowak at __"]. Congress found

that at least one million women a year require health care

services for injuries and disabilities—some permanent-- caused

by intimate partners. This statistic does not include the

ongoing devastating effects of trauma. S.R. at 31, 37. Also

contrary to the protection of privacy guaranteed by ICCPR

12

article 17, gender-based violence inflicts severe physical and

psychological harm.'’

The right to be free from torture and cruel, inhuman or

degrading treatment, protected by ICCPR article 7, also

encompasses gender violence.'* Again, the Human Rights

Committee clearly states that this right requires the State to

afford everyone protection against torture and ill treatment,

"whether inflicted by people acting in their official capacity,

outside their official capacity, or in a private capacity."

Compilation Part 1, General Comment 20 at § 2. Moreover, is

"not sufficient [for the State] to make [torture] a crime." /d. at

§ 8. The Comment notes that the characterization of ill-

treatment depends on its "nature, purpose, and severity," id

at { 4, that it and may occur in many contexts, including

teaching and medical institutions, id at 4 5. Rape and other

forms of sexual violence by private actors have been treated as

The Senate Report contains chilling findings on the prevalence of

intimate violence, indicating that 3 to 4 million women are abused each

year and between 2,000 and 4,000 are killed by their partners. S.R. at 36-

37. Absent effective protection, women are denied even the sanctuary of

their homes, and are terrorized within their families. See 140 Cong. Rec.

H4724-02, *H4724 (1994) ("[C]an you imagine living a life where not

only was the street unsafe, home was more unsafe than the street? [This is]

domestic terrorism.") (statement of Rep. Schroeder).

'8 Ratified by the U.S. on Nov. 20, 1994, the Convention on the

Elimination of Torture and Other Cruel, Inhuman or Degrading Treaament

or Punishment provides an alternative source of treaty power for the

enactment of VAWA, making the U.S. responsible for such private

violence under the treaty when it has ordered, instigated, consented or

acquiesced therein. (emphasis added). See Convention on the Elimination

of Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment, entered in force Nov. 20, 1994 at Art. 1. [herinafter "CAT at

___"] It further obligates states to take “effective, legislative, ...[and]

judicial measures to prevent acts of torture...” id. art. 2(1), and to ensure

civil redress for its victims, id. at art. 14(1).

13

torture in other contexts.'? Severe unredressed domestic

violence may also constitute torture or ill-treatment.”

Extreme forms of gender violence also amount to privately

inflicted servitude or slave-like conditions which violate the

ICCPR irrespective of any State involvement.”'

'? Under art. 5(2) of the American Convention on Human Rights, which

parallels ICCPR art. 7, torture includes rape by para-militaries and

criminal elements allowed to operate with impunity. See Report on the

Situation of Human Rights in Haiti, Inter-Am. C.H.R.,

OEA/Ser.L/V/11.88, Doc. 10 rev. (1995) at §§ 128-133 [hereinafter “Haiti

Report at __"J; see also Aydin v. Turkey, Eur. Ct. H.R., 25/09/1997

(treating rape as torture under the European Convention). The United

Nations Special Rapporteur on Systematic Rape, Sexual Slavery, and

Slavery-Like Practices During Armed Conflicts, has also made explicit

findings regarding rape as a form of torture. See Report of the Special

Rapporteur on Systematic Rape, Sexual Slavery, and Slavery-Like

Practices During Armed Conflicts, at 4 53-55, 50th sess., U.N. GAOR,

Human Rts. Comm., U.N. Doc. E/CN.4/1996/53 (1996). Likewise, in the

ad hoc International Criminal Tribunals, rape has been held or identified as

a from of torture in judgements. See Prosecutor v. Furndzija, Case No.

IT-95-17/1-T (Judgment Dec. 10, 1998)' Prosecutor v. Celebici, Case No.

IT-96-21-T (Judgement Nov. 16, 1998); and Prosecutor v. Akayesu, Case

No. ICTR-96-4-T (Judgment Sept. 2, 1998).

2° “[D]epending on its severity and the circumstances giving rise to State

responsibility, domestic violence can constitute torture or cruel, inhuman

and degrading treatment or punishment under the International Covenant

on Civil and Political Rights and the Convention against Torture and

Other Cruel, Inhuman or Degrading Treatment or Punishment." Special

Rapporteur at § 42. Both “the battered woman and the prisoner live

isolated under a reign of terror and impairment as well as often profound

and lasting psychological debilitation." /d. at 4 46. "[T]he lack of

resources, legal and community support and alternative means to survive

may make escape seem impossible as well as reinforce her shame,

hopelessness, and sense that she deserves this treatment." /d at { 44.

*! Gender violence may also be examined under the Thirteenth

Amendment. It is sometimes severe to constitute a form of

involuntary servitude in itself. But beyond that, the continued occurrence

of gender violence together with the discriminatory treatment by the courts

of the women who are its victims constitutes a badge and incidence of

slavery. See generally, Michellene Elizabeth Hearn, A Thirteenth

Amendment Defense of the Violence Against Women Act, 146 U. PENN.

14

-_— eo

Cc. The ICCPR Calls For Judicial Remedies,

Such As VAWA, To Redress Gender-Based

Violence.

Article 2 of the ICCPR requires States to “adopt such

legislative or other measures as may be necessary to give effect

to the rights recognized in the present Covenant.” /d. at art. 2.

It calls upon each State Party to ensure to any person whose

rights have been violated, whether by state officials or private

persons, “an effective remedy,” to be “determined by

competent judicial, administrative or legislative authorities or

other competent authority." ICCPR at art. 2(3)(a) and 2(3)(b).

Indeed, the Covenant envisions a VAWA-type cause of action,

calling upon states “to develop the possibilities of judicial

remedy." ICCPR ai art. 3. The Declaration on Violence affirms

this, endorsing "civil . . . domestic legislation... to punish and

redress the wrongs caused to women who are subjected to

violence." Declaration on Violence at art. 4(d). The CEDAW

Recommendation on violence against women likewise

emphasizes “civil remedies and compensatory provisions.”

Compilation at Part 1V, Recommendation 19.

D. The Executive’s Identification of VAWA As

Responsive to U.S. Obligations Under The

ICCPR Should Be Given Great Weight.

L.REV., 1097 (1988) and Joyce McConnell, Beyond Metaphor: Battered

Women, Involuntary Servitude and the Thirteenth Amendment, 4 Y ALE J.

L. & FEMINISM 207 (1992); see also Jones v. Mayer, 392 U.S. 409

(1968). Prior to the 19th century, women had a chattel- or slave-like status

under the common law and their husbands had the power to control them;

central to this power was “the right to use violence with a stick no greater

than the thumb.” See, e.g. State v. Rhodes, 61 N.C. 453 (Phil. Law 1868).

This Court has also implicitly suggested that current legal manifestations

of women's traditional common-law status implicate Thirteenth

Amendment rights. Planned Parenthood of Southeastern Penn. v. Casey,

505 U.S. 833, 897-898 (1992).

15

Given the Executive Branch's special constitutional role in

negotiating and enforcing treaties, the Court gives Executive

interpretations of ratified treaties great weight. Sumitomo

Shoji America, Inc. v. Avagliano, 457 U.S. 176, 184-185

(1982) ("Although not conclusive, the meaning attributed to

treaty provisions by the government agencies charged with

their negotiation and enforcement is entitled to great weight.");

see also, Kolovrat v. Oregon, 366 U.S. 187, 194 (1961).

Here, the Executive Branch has taken the official position that

the ICCPR obligates States parties to provide remedies for

gender-based violence and that VAWA is implementing

legislation to meet U.S. obligations. In connection with the

first U.S. Report to the Human Rights Committee on U.S.

compliance with the treaty, the Executive emphasized VAWA

as a measure undertaken to comply with ICCPR obligations.”

The Justice Department spokesperson described the Act as

"the most comprehensive federal effort in its field," and noted

especially the civil cause of action for gender-based violence.”

The Executive also affirmed its commitment to comply with

the ICCPR and “extend [the Covenant] to all parts of the

federal states without limitations or exceptions" in its Report

to the Human Rights Committee, regarding implementation of

the ICCPR through Article 50. Concluding Observations of

the Human Rights Committee: United States of America, at |

277, CCPR/C/79/Add.50 (3/10/95) [hereinafter "Concluding

Observations at§ __"}. The U.S. spokesperson stated that

while federalism concerns would not permit the federal

2 Summary Record of the 1401st Meeting: United States of America, at

q 29, CCPR/C/SR.140 (17/04/95).

® Id.

16

a _

government to obligate the states to undertake particular

actions -- such as “dictating the basic form or internal

workings of state government" -- federal responsibility did

extend to “enforc[ing] uniform standards for the respect of

civil and political rights". ** Accordingly, VAWA does not

mandate state action, but rather, as noted by U.S. officials,

works in partnership with states and complements state

jurisdiction. *° In turn, the Committee's concluding comments

“note[} with satisfaction the assurances of the [U.S.]

Government that its declaration regarding the federal system is

not a reservation and is not intended to affect the international

obligations of the United States." Concluding Observations at

§ 277.

Because the Executive Branch's interpretation of the treaty

was part of the official reporting process, it also constitutes

State practice and conduct and is thus further evidence of the

treaty’s meaning. O'Connor v. U.S., 479 U.S. 27, 33 (1986)

("The course of conduct of parties to an international

agreement, like the course of conduct of parties to any

contract, is evidence of its meaning."); see also, RESTATEMENT

(THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES at §

325 (2) (1986). ("[S]ubsequent practice between the parties in

the application of the agreement, [is] to be taken into account

in its interpretation.").

24

Summary Record of the 140Sth Meeting: United States of America at

10 CCPR/C/SR.1405 (24/04/95). .

* See, e.g., White House, Office of the Vice President, Vice President

Gore Announces $223 Million in Grants to Help Detect and Stop

Violence Against Women (visited Nov. 9, 1999) <<http:///www.pub.

whitehouse. gov/uri.res/I2R ?um:pdi://oma.eop.gov.us/1999/3/2/4.text.1>;

U.S. Dep't of Justice, Excerpts From Attorney General Janet Reno's

Testimony Before the Senate Judiciary Committee May 15, 1996 (visited

Nov. 9, 1999) <<http://www.doj.gov/vawo/ag796.htm>>.

17

IL ConGREsSS Has CONSTITUTIONAL AUTHORITY TO

Enact VAWA To IMPLEMENT INTERNATIONAL

CUSTOMARY LAW OBLIGATIONS.

A. The Define and Punish Clause of the U.S.

Constitution Authorizes Congress To Enact

Legislation to Fulfill Customary Law

Obligations.

Art. 1, Section 8, clause 10 of the Constitution grants

Congress the power to "define and punish Piracies and

Felonies committed on the high Seas and Offenses against the

Law of Nations.” This Court stated: "The national government

is in this way made responsible to foreign nations for all

violations by the United States of their international

obligations, and because of this Congress is explicitly

authorized ‘to define and punish ...' offenses against the law of

nations.” U.S. v. Arjona, 120 U.S. 479, 483 (1887).”* This

clause “authorize[s] Congress to derive from the often broadly

phrased principles of international law a more precise code as

it determines that to be necessary to bring the United States

into compliance with rules governing the international

community." Finzer v. Barry, 798 F.2d 1450, 1455 (D.C. Cir.

1986), rev'd on other grounds, Boos v. Barry, 485 U.S. 312

(1988).

The concept of "Offenses Against the Law of Nations"

embraces customary international law and includes civil as well

as criminal remedies. This Court took note of Congress's

citation to the Define and Punish Clause, infer alia, as

authority for its enactment of the Foreign Sovereign

® Arjona also stated Congress did not have to identify the Define and

Punish Clause so long as Congress defined the offense and the U.S. had

an international legal obligation to prevent it. Arjona, 120 US. at 483.

18

Immunities Act (FSIA) regulating federal court actions

cognizable under Article III, sec. 2, cl. 1. Verlinden BV. vy.

Central Bank of Nigeria, 461 U.S. 480, 493 (1983). See H.R.

Rep. No. 1487, 94th Cong., 2d Sess. (1976). In passing the

Torture Victim Protection Act (TVPA), Congress again

explicitly cited to the Define and Punish Clause as authority to

create a civil cause of action for torture and extrajudicial

execution. See S. Rep. No. 102-249 (1992).

Additionally, as the Second Circuit recognized in its landmark

decision in Filartiga v. Pena-Irala, 630 F.2d 876, 890 (1980),

when Congress provides only a civil remedy for an offense

against human rights, the conduct complained of still retains "

its character as an international law violation." See also, Trible

v. Stone, 187 F.Supp 483, 485 (D.D.C. 1960) (Basic human

rights do not depend on nomenclature.").

Congressional power under the Define and Punish Clause

clearly authorizes sanctions on private conduct that the United

States is required to prevent under international law. For

example, in Arjona, the Court found that although the

international counterfeiting prohibition applied only to States,

the Define and Punish Clause provided adequate constitutional

authority for the criminal statute [punishing private

counterfeiting] because the United States had the "obligation ...

to punish those who, within its own jurisdiction, counterfeit

the money of another nation." Arjona, 120 U.S. at 484.’

Similarly, courts have consistently upheld federal prohibitions

on private protests or harassment of foreign embassies or

27

"The law of nations requires every national government to use ‘due

diligence’ to prevent a wrong being done within its own dominion to

another nation .. . ." Arjona, 120 U.S. at 484.

19

diplomats under the Define and Punish Clause™* even though

the protestor or individual harassing foreign diplomats is not

the direct "violator" of the law of nations. Frend v. United

States, 100 F.2d 691, 693 (D.C. Cir. 1938), cert. denied, 306

U.S. 640 (1939).

Thus, VAWA is a proper exercise of Congressional authority

under the Define and Punish Clause. It creates a civil remedy

to redress conduct customary international law condemns as

criminal and which states are required to sanction. See § Ill

below. As with counterfeiting foreign currency and

harassment of diplomats and foreign missions, "nations have

made it their business, both through international accords and

unilateral action, to be concerned with domestic human rights

violations..." Filartiga, 630 F.2d at 889. This principle applies

to gender-based violence.

B. The Necessary and Proper Clause

Authorizes Congress To Confer Article Il

Jurisdiction On The Federal Courts To

Implement Customary Norms.

Since VAWA provides a federal judicial remedy for violation

of the customary norm condemning gender-based violence, see

infra § Ill, it is an appropriate exercise of Congress’s power

under the Necessary and Proper Clause to "carry...into

** Boos v. Barry, 485 U.S. 312, 323 (1988) ("The constitution itself

attempts to further this interest [of the United States to comply with

international law] by expressly authorizing Congress ‘to define . 1 punish

Piracies and Felonies committed on the high Seas, and Offenses against

the Law of Nations’...Moreover, protecting foreign emissaries has a long

history and noble purpose."); Finzer v. Barry, 798 F.2d 1450, rev'd on

other grounds, Boos v. Barry, 485 U.S. 312 (1988); Jewish Defense

League Inc. v. Washington, 347 F. Supp. 1300 (D.D.C. 1972), Frend v.

United States, 100 F.2d 691 (D.C. Cir. 1938), cert. denied, 306 U.S. 640

(1939).

20

~~ SUD =.-

Execution...all other Powers vested by [the] Constitution in

the Government of the United States."”* U.S. Const. art. I, § 8,

cl. 18. Art. III, Section 2, clause 4 of the Constitution vests

federal courts with jurisdiction over cases "arising under the

laws of the United States," which includes customary

international law.

Throughout the last two centuries the Court has consistently

affirmed the principle that customary international law is part

of the "laws" of the United States as understood by Article III,

section 2, clause 1. In Chisholm v. Georgia, 2 U.S. (2 Dall.)

419, 474 (1793), although dealing with the expediency of

States to ascertain international law, the Court stated that the

U.S. was responsible to other countries for the "conduct of

each State, relative to the laws of nations, and the performance

of treaties." Reinforcing the obligation is Ware v. Hylton, 3

U.S. (3 Dall.) 199, 281 (1796), stating "[w]hen the United

States declared their independence, they were bound to receive

the law of nations..." The Court explicitly affirmed the status

of customary international law in The Nereide, 9 U.S. (9

Cranch) 388, 423 (1815), saying, "[T]he Court is bound by the

law of nations which is a part of the law of the land."

Moreover, in The Paquete Habana, 175 U.S. 677, 700-701

(1900) this principle was further elucidated: "[i}nternational

law [which includes customary law] is part of our law, and

must be ascertained and administered by the courts of justice

of appropriate jurisdiction...". °°

* This power is a flexible grant to Congress to perform its duties under

the laws of the nation. McCulloch v. Maryland, 17 U.S. 316, 324 (1819)

("[T]he grant of powers itself necessarily implies the grant of all usual and

suitable means for the execution of the powers granted."). See also

Graham v. Deere, 383 U.S. 1, 6 (1966); Yakus v. United States, 321 U.S.

414, 425 (1944).

* See Filartiga, 630 F.2d at 885 ("the law of nations . . . has always

been a part of federal common law") and Xuncax v. Gramajo, 886 F.

21

In cases involving the Alien Tort Claims Act lower courts have

consistently found that Congress may appropriately provide

jurisdiction to the federal courts for the enforcement of

customary law. *! VAWA, like ACTA, defines a specific

remedy for already recognized rights under human rights law

and thus is not "granting new rights ... but simply opening the

federal courts for adjudication of the rights already recognized

by international law. Filartiga, 630 F.2d at 887.

IL ENSURING THE RiGHT To BE FREE FROM GENDER

BASED VIOLENCE Is AN OBLIGATION UNDER

INTERNATIONAL CUSTOMARY LAW.

A. U.S. Courts Have Consistently Recognized

The Appropriate Sources For Discerning

Customary Law.

From its earliest jurisprudence, this Court has articulated

widely accepted international principles for the discernment of

customary international law. The Paquete Habana, 175 U.S.

at 700.*? More recently, courts have relied on article 38 of the

Supp. 162, 179 (D. Mass. 1995). See also, Banco Nacional de Cuba v.

Sabbatino, 376 U.S. 398, 421-24 (1964); Blackmer v. United States, 284

U.S. 421, 437 (1932); United States v. Arjona, 120 U.S. 479, 484-85

(1887); Kadic v. Karadzic ,70 F.3d 232 (2nd Cir. 1995), cert. denied,

Karadzic v. Kadic, 518 U.S. 1005 (1996); Garcia-Mir v. Meese, 788 F.2d

1446, 1453 (11th Cir. 1986); Forti v. Suarez-Mason, 672 F. Supp. 1531,

1542 (N.D. Cal. 1987); J. Paust, Private Duties at 34-48.

" See Filartiga 630 F.2d at 887; see also, Gramajo, 886 F.Supp. at 179

(ACTA "grants both federal private cause of action as well as a federal

forum in which to assert the claim.).

2 This Court has also instructed that “where there is no treaty and no

controlling executive or legislative act or judicial decision, resort must be

had to the customs and usages of civilized nations, and, as evidence of

these, to the works of jurists and commentators who by years of labor,

research, and experience have made themselves peculiarly well acquainted

22

Statute of the International Court of Justice.” See, e.g.

Filartiga, 630 F.2d at 881.

One of the most comprehensive statements on sources of

customary human rights law is now found in the RESTATEMENT

OF THE LAW (THIRD), FOREIGN RELATIONS LAW OF THE UNITED

STATES (1986). Significantly, the Restatement notes: "the

practice of states that is accepted as building customary

international law of human rights includes some forms of

conduct different from those that build customary

international law generally." Jd. at § 701. The Restatement

sets out the following categories of sources:

[1] [V]Jirtually universal participation of states in the

preparation and adoption of international agreements

recognizing human rights principles generally, or

particular rights;

[2] the adoption of human rights principles by states and

in regional organizations in Europe, Latin America,

and Africa;

[3] general support by states for United Nations

resolutions declaring, recognizing, invoking, and

applying international human rights principles as

international law;

= the subjects of which they treat." The Paquete Habana, 175 U.S.at

» Article 38 provides that:

The Court, whose function is to decide in accordance to international law

..-Shall apply: (a) international conventions...establishing rules expressly

recognized by the contesting States; (b) international custom, as evidence

of a general practice accepted by law; (c) the general principles of law

recognized by civilized nations; and (d)... judicial decisions and the

teachings of the most highly qualified publicists of the various nations, as

subsidiary means for the determination of the rules of law. ;

23

[4] action by States to conform their national law or

practice to standards or principles declared by

international bodies... [and]

[5] invocation of human rights principles in national

policy, in diplomatic practice, in international

organization activities and actions, and other

diplomatic communications. Jd. at Reporter's

Notes § 2.

These sources consistently reaffirm the customary norm

prohibiting gender-based violence and the State obligation to

provide civil remedies for such violations.

B. Gender-Based Violence Violates A

Customary Norm of International Law.

Widely ratified treaties, together with unchallenged

interpretive declarations and statements thereto, are a

powerful source of customary international law. Jd. The

widespread ratification of the ICCPR and CAT, discussed in

Section I,** supra, constitutes compelling evidence of a

customary norm guaranteeing against all forms of gender-based

violence and imposing responsibility on States to redress it

through VAWA-type remedies.** Beyond the treaties ratified

* For example, 144 States have ratified the ICCPR, and 118 States have

ratified the CAT -- which impose obligations on states to enact remedies

for gender-based violence. See supra § I.

** This Court found in Filartiga, that the ICCPR, at that time not yet

ratified by the United States, constituted evidence of the human rights

prohibition on torture. 630 F.2d at 884. Thus, the ICCPR, the CAT, and

the Women's Convention -- as interpreted by CEDAW's General

Recommendation no. 19 and the Declaration on Violence - are evidence

of a customary norm prohibiting all forms of gender-based violence and

imposing obligations on States to take action to eliminate it. See supra §

1A; see also, J. Paust, Private Duties at 22-23, 369.

24

by the U.S., the near unanimous ratification of the Women's

Convention underscores this customary norm, as do regional

treaties and resolutions. *© For example, the Inter-American

Convention on the Prevention, Punishment and Eradication of

Violence Against Women also declares the right to live free

from gender-based violence, see Belem do Para at art. 3 and 6,

and requires states to provide civil remedies. Jd. at art. 7(d).

The Declaration on the Elimination of Violence Against

Women -- adopted unanimously by all the member States of

the General Assembly of the United Nations -contributes to

customary law both as an interpretation of the ICCPR, CAT

and CEDAW and as evidence of state practice reflecting the

"general assent of nations." See Filartiga, 630 F.2d at 884.

Further evidence of the “general assent of nations” is found in

the continuing attention to gender violence in the U.N. human

rights system. In 1994, the U.N. Human Rights Commission

(hereinafter “Commission”), recognizing the need to eliminate

gender violence as a priority concern, created the position of

U.N. Special Rapporteur on Violence Against Women, Its

Causes and Consequences. Every year since, the Commission

has adopted resolutions endorsing her reports and emphasizing

states’ obligations to eliminate violence against women.°’ See,

*© The Women's Convention has been ratified by 165 States.

37 This “general assent” is also found in the consensus documents

negotiated by virtually all member states at the recent series of United

Nations World Conferences, which condemn gender violence and call for

remedies without reservation. See, e.g. Vienna Declaration and

Programme of Action, General Assembly, World Conferes.ce on Human

Rights, U.N. Doc. A/Conf./57/23 (12 July 1993). and Beijing

Declaration and Platform for Action, General Assembly Report of the

Fourth World Conference on Women, U.N. Doc. HRV/GEN/1/Rev.2 (29

March 1996). In doing so, these conference agreements not only represent a

programmatic consensus to take action, such as VAWA, to redress, prevent

and eradicate the social problem of gender-based violence; they also

recognize an international human rights obligation to do so.

25

e.g., U.N. GAOR, Hum. Rts. Comm., 55th meeting, U.N.

Doc.E/CN.4/RES/1999/42 (1999), U.N. GAOR, Hum. Rts.

Comm., 52nd meeting, U.N. Doc. E/CN.4/RES/1998/52,

(1998); U.N. GAOR, Hum. Rts. Comm., 57th meeting.

U.N. Doc. E/CN.4/RES/1997/44 (1997).

Moreover, States around the globe have taken action to create

legal mechanisms to address gender-based violence. "In most

countries, . . . there exists at least one of three traditional

legal mechanisms available to victims of domestic violence:

criminal law, civil remedies, or matrimonial relief." U.N.

GAOR, Human Rts. Comm., Report of the Special Rapporteur

on Violence Against Women, its Causes and Consequences,

52nd sess., U.N. Doc. E/CN.4/1996/53 (1996) at § 121.

Finally, the participation of the scholars and human rights

experts as amici curiae in this brief, and their substantial work,

see supra “Interests of the Amici," attest to the widespread

recognition that gender violence constitutes one of the gravest,

albeit long-ignored and still pervasive, violations of human

rights and humanitarian law. **

38 Selected additional scholarship includes the following: Hilary

Charlesworth, The UN Declaration on Violence Against Women, AM.

Soc. OF INT'L L. INSIGHT (1994); Hilary Charlesworth & Christine

Chinkin, The Gender of Jus Cogens, 15 HUM. RTS. Q. 61 (1993); Rhonda

Copelon, Recognizing the Egregious in the Everyday: Domestic Violence

as Torture, 25 COLUM. HUM. RTS. L. REV. 291 (1997); Katherine M.

Culliton, Finding a Mechanism to Enforce Women's Right to State

Protection from Domestic Violence in the Americas, 34 HARV. INT'L L. J.

507 (1993); Dorothy O. Thomas and Mishele E. Beasley, Domestic

Violence as a Human Rights Issue, 15 HUM. RTS. Q. 36 (1993); Theodor

Meron, Rape as a Crime Under International Humanitarian Law, 87

A.J.LL. 424 (1993); Celina Romany, State Responsibility Goes Private: A

Feminist Critique of the Public/Private Distinction in International

Human Rights Law, in REBECCA J. COOK, ED., HUMAN RIGHTS OF

WOMEN: NATIONAL AND INTERNATIONAL PERSPECTIVES 85-115 (1994);

and Katherine Adrienne Wing, A _ Critical Race Feminist

26

Cc. The Executive's Recognition Of Its Human

Rights Obligation To Redress Gender-

Based Violence Through VAWA Is Entitled

To Deference.

The United States has played a leadership role in negotiating

and reaffirming diplomatically the international recognition of

gender violence as a violation of human rights as well as the

need for states to provide remedies therefor. For example, the

official United States spokeswoman on issues of gender

violence at the Fourth World Conference on Women in

Beijing stated:

[Djomestic and sexual violence represent a major

obstacle for women and contributes to the low social

and economic status of women. When women are

prevented by violence from participating fully within

our families, our society, our economy, and our

political structures, it will now be recognized as

violation of our human rights and fundamental

freedoms. *°

She further identified VAWA as the primary example of a

United States initiative addressing human rights violations

Conceptualization of Violence: South African and Palestinian Women, 60

ALB. L. REV. 943 (1997).

** On the Record Briefing by Director Bonnie J. Campbell, Violence

Against Women Office, Department of Justice. Sept. 12, 1995. (emphasis

added). Ms. Campbell made clear the administration's position that

violence against women violates a number of fundamental human rights,

including the right to be free from torture ("rape is a form of torture . .and

a violation of human rights"), and the right to be free from gender

discrimination ("the provision for ‘equal sexual relations’ is a vital

element of our ability to deal with rape and sexual assault."). /d

27

involving violence against women, noting specifically the

federal civil rights remedy at issue here. Jd.

IV. BoTtH TREATY AND CUSTOMARY LAW SUPPORT

INTERPRETING THE COMMERCE CLAUSE AND THE

FOURTEENTH AMENDMENT AS CONFERRING AUTHORITY

On CONGRESS TO PROVIDE REDRESS FOR GENDER-

BASED VIOLENCE.

Where, as in the instant case, there is no inevitable conflict

with the Constitution, the obligation of the U.S. to respect and

fulfill its international obligations should dispose the judiciary

to read the Constitution to reconcile the two. As this Court

has found, "[a]ny rule of constitutional law that would inhibit

the flexibility of the political branches of government to

respond to changing world conditions should be adopted only

with the greatest caution." Mathews v. Diaz, 426 U.S. 67, 81

(1976). This is particularly true where, as here, the capacity to

honor significant foreign policy and __ international

commitments-- a priority concern since the founding of the

Republic-- is at stake. Missouri v. Holland, 252 U.S. at 432.

For these reasons, "Courts in the United States have

increasingly looked to international human rights standards as

law in the United States or as a guide to United States law.”

RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE

UniTep States § 701, Reporter's Note at. § 7 (1987). The

reasoning underlying the principle stated by this Court in The

Charming Betsy, 6 U.S. (2 Cranch) U.S. 64, 118 (1804) that

"an act of Congress ought never be construed to violate the law

of nations, if any other possible construction remains,” also

supports constitutional interpretations that are consistent

28

eT me ~

with international law and allow Congress to meet

international obligations. “°

The principle favoring reconciliation applies with special force

where constitutional history and precedents, including divided

judicial opinions, provide support for constitutional

interpretation that is consistent with international law.

Without repeating the arguments of the appellants or other

amicus curiae briefs, amici here note that appellees’ argument

that the Commerce Clause does not authorize the VAWA

legislation would entail a marked departure from long-settled

interpretations of the scope of the commerce power. Here,

Congress and the Executive have recognized that gender

violence significantly affects women's ability to participate in

and contribute to the economic life of this nation as well as

entails significant costs which affect interstate commerce. See

Pet'r Brzonkala's Br. at §1. Under these circumstances, it is

impermissible to read the Commerce Clause to invalidate an

Act of Congress that advances our treaty and customary

international commitments and is otherwise consistent with

the Constitution, including the Tenth Amendment.

The same interpretive principle calls for reaffirming

Congressional power under Section 5 of the Fourteenth

Amendment to enact the VAWA cause of action. As the

explicit constitutional vehicle through which Congress enforces

the "privileges anc .mmunities of citizens" as well as the rights

to “equal protection" and “due process," Section 5 is a

particularly appropriate source of power to implement the

“ See also, Lauritzen v. Larsen, 345 U.S. 571, 578 (1953); Garcia-Mir v.

Meese, 788 F.2d 1446, 1453 (11th Cir. 1986) ("To the extent possible,

courts must construe American law so as to avoid violating principles of

public international law.").

29

parallel international rights that comprise the human right to be

free from gender violence.

Given the Congressional findings of discrimination in state

courts for victims of gender violence, see Pet'r Brzonkala's Br.

at § Il, and settled Fourteenth Amendment jurisprudence

protecting against such discriminatx) access, Section 5

provides ample support for congressienal authority to enact

the VAWA cause of action. Further, given the US’

international treaty and customary obligations to the

community of nations, and to its people, to ensure redress for

gender-based violences throughout the land, there can be no

doubt as to the constitutionality of the federal civil rights

remedy that VAWA creates.

WHEREFORE, the judgment of the Court below should be

reversed.

Respectfully submitted,

Cathy Albisa Jenny Green

Rhonda Copelon* Peter Weiss

*Counsel of Record Center for Constitutional

International Women's Rights

Human Rights Law Clinic 666 Broadway

City University of New York |New York, New York 10012

School of Law (212) 614-6434

65-21 Main Street :

Flushing, New York 11367 77

(718) 340-4300

Special thanks to CUNY students Marina Citron, Annie Camett, Erin Gleason,

Lisa Graybill, Annie Holmes, and Kimberly Jones.

30