# Amicus Curiae Brief — United States v. Morrison

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0317%3A23

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2000
- **Citation:** 529 U.S. 598

## Text

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
>........

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

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) ;
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) >.

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0317%3A23. Public record. Not legal advice.