Amicus Curiae Brief — Tuan Anh Nguyen v. INS

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Supreme Court," °.

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No. 99-2071 NOV 23 2000

CLERK ‘ |

iN THE : AJOV [3 2eee

Supreme Court of the Hnited States

TUAN AHN NGUYEN AND JOSEPH BOuULAIS,

* Petitioners,

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

On Writ Of Certiorari To The

United States Court Of Appeals

For The Fifth Circuit

BRIEF OF EQUALITY NOW AND OTHERS AS

AMICI CURIAE IN SUPPORT OF PETITIONERS

OGDEN NORTHRUP LEWIS

Counsel of Record

DAVIS POLK & WARDWELL

450 LEXINGTON AVENUE

NEW YORK, NEW YORK 10017

(212) 450-4000

JESSICA NEUWIRTH

EQUALITY NOW

250 WEST 57TH STREET

NEW YORK, NEW YORK 10107

(212) 586-0906

YSo0

a ae

(i)

INTEREST OF THE AMICI’

Equality Now is an international human rights

organization dedicated to the protection and promotion

of women’s rights. Human rights principles articulated

in international law reinforce the work of the organiza-

tion. Equality Now has consultative status with the ~

United Nations and regularly submits information to

the United Nations Human Rights Committee on

implementation of the International Covenant on Civil

and Political Rights in countries under review by the

Committee with respect to equality and other rights

relating to the status of women.

In July 1999, in preparation for the June 2000

Special Session of the United Nations General Assem-

bly to review implementation of the Platform for Action

adopted in 1995 at the Fourth World Conference on

Women in Beijing, Equality Now issued a report,

Words and Deeds - Holding Governments Accountable

in the Beijing +5 Review Process, highlighting a repre-

sentative sampling of laws in 45 countries around the

world that explicitly discriminate on the basis of sex.

One of the discriminatory laws highlighted in this

report was Section 309 of the Immigration and Nation-

ality Act (INA), ch. 477, 66 Stat. 238 (1952), as

amended, 8 U.S.C. § 1409. Equality Now has contin-

ued its efforts to get 8 U.S.C. 1409(a)(3) and (a)(4)

amended in accordance with the commitment made by

the United States Government, together with other

' The parties have consented to the submission of this brief.

The letters of consent have been filed with the Clerk of this Court.

Pursuant to Supreme Court Rule 37.6, none of the parties

authored this brief in whole or in part. With the exception of the

Urgent Action Fund (P.O. Box 29274, Presidio Building 1016, San

Francisco, CA 94129-0274) which supported research for the brief,

and no one other than amici’s counsel contributed money or

services to preparation or submission of this brief.

(ii)

governments, in 4232(d) of the Platform for Action,

Report of the Fourth World Conference on Women,

Beijing, Sept. 4-15 1995, U.N. Doc. A/CONF.177/20,

resolution I, Annex II, to revoke laws that discriminate

on the basis of sex. Members of Equality Now’s

Women’s Action Network, consisting of more than

5,000 groups and individuals in more than 100 coun-

tries around the world including the United States,

have written to United States government officials,

urging them to work for the adoption of the same legal

standard, based on equality, for U.S. citizen fathers

and mothers to transmit citizenship to their children

born abroad and out-of-wedlock.

Argentine Association of Women Judges (AMJA)

was initially founded in 1993 as a chapter of the

International Association of Women Judges. In 1997,

it became an independent association. The AMJA is

based in Buenos Aires and has 280 members around

the country including men as well as women and

prosecutors and public defenders, as well as judges.

Since 1994, the AMJA has run a judicial education

program based on international law and entitled

“Towards a Jurisprudence of Equality: Women, Judges

and Human Rights Laws.”

| Ethiopian Women Lawyers Association (EWLA)

is a non-governmental organization based in Addis

Ababa, working for the protection and promotion of

women’s rights in Ethiopia. The organization is en-

gaged in various legislative initiatives, particularly in

relation to family law and laws relating to violence

against women. The organization is also engaged in the

provision of legal services to women, and in broader

educational initiatives for the promotion of legal

literacy among women in Ethiopia.

Forum for Women, Law and Developmeut

(FWLD) is a non-governmental organization based in

Kathmandu, Nepal, working for the advancement of

(iii)

women’s rights in Nepal. FWLD has been involved in

a number of test cases on equality issues incorporating

the use of international law in domestic courts in

Nepal. In June 1999, FWLD submitted a shadow

report on the implementation by Nepal of its obliga-

tions under the Convention on the Elimination of All

Forms of Discrimination Against Women (CEDAW), in

connection with a review of Nepal by the United

Nations CEDAW Committee. FWLD recently issued a

report, “Discriminatory Laws in Nepal and Their

Impact on Women: A Review of the Current Situation

and Proposals for Change.”

International Commission of Jurists (ICJ) is an

international non-governmental organization founded

in 1952 and based in Geneva. Its global goal is to

support and advance those principles of justice which

constitute the basis of the rule of law and assist those

people to whom the rule of law is denied. The ICJ has

consultative status with the United Nations, the

Organization of African Unity, and the Council of

Europe.

International Federation of Women Jurists

(FIFCJ) is a non-governmental organization that was

founded in 1926. It is based in Barcelona, Spain and

has members from 72 countries. Members include

lawyers, judges, and law professors, and the organiza-

tion engages in activities around the world, particu-

larly in Europe, South America and Africa. FIFCJ has

consultative status with the United Nations and has

participated in the development of international law

including the Convention on the Elimination of All

Forms of Discrimination (CEDAW) and other conven-

tions and norms of the European Union.

International Federation of Women Lawyers

(FIDA) is anon-governmental organization, founded in

1944 in Mexico City. FIDA, which has consultative

status with the United Nations, aims to promote the

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(Gv)

principles of the United Nations especially by advanc-

ing opportunities for women, particularly in the legal

and judicial professions. FIDA is a worldwide organiza-

tion with members in 80 countries. Members include

practicing lawyers, jurists, government ministers, and

community leaders.

International Human Rights Law Group is a non-

profit organization of human rights and legal profession-

als based in Washington, D.C. with offices in several

countries engaged in human rights advocacy, litigation

and training around the world. The International

Human Rights Law Group helps empower local advo-

cates to expand the scope of human rights protections for

men and women and to promote broad participation in

building human rights standards and procedures at the

national, regional and international levels.

International Women’s Rights Action Watch

(IWRAW) was founded in 1985 and is based at the

Humphrey Institute, University of Minnesota. [IWRAW

is a resource and communication center for an interna-

tional network of 5000 activists, scholars, and govern-

ment officials focusing on implementation of women’s

human rights under the UN human rights treaties. It

produces shadow reports on the status of women in

countries under review by United Nations treaty bodies

including CEDAW and provides technical assistance on

treaty implementation.

Latin American and Caribbean Committee for

the Defense of Women’s Rights (CLADEM) is a

non-governmental organization based in Lima, Peru with

affiliates in seventeen countries, working to end violence

and promote the human rights of women. In October

2000, CLADEM coordinated the submission of reports to

the United Nations Human Rights Committee on the

implementation of the International Covenant on Civil

and Political Rights by Argentina and Peru, in connection

with the Committee’s review of those countries.

(v)

Women in Law and Development in Africa

(WiLDAF) is a pan-African non-governmental organi-

zation working to bring together organizations and

individuals using law to promote and protect womens

rights in African countries. WiLDAF’s goal is to pro-

mote the effective use of legal strategies by women in

Africa for self, community and national development.

The organization, which was established in 1990, has

chapters in 33 countries of Africa. The Regional Office

is based in Harare, Zimbabwe.

TABLE OF CONTENTS

INTEREST OF THE AMICI....................

TABLE OF AUTHORITIES.............. re

STATEMENT OF FACTS AND PROCEDURAL HISTORY

SUMMARY OF THE ARGUMENT...............

I. THE COURT SHOULD CONSIDER THE

CONSTITUTIONALITY OF 8 U.S.C. § 1409

WITH REFERENCE TO THE EQUALITY

RIGHT SET FORTH IN THE UNITED

NATIONS INTERNATIONAL COVENANT

ON CIVIL AND POLITICAL RIGHTS

a With stn niwesedenscin at aemes

A. Treaties Have the Force of Law under

the Constitution and the Court Has

Relied on Treaty Law in its Jurispru-

dence, Particularly in the Context of

Immigration. .... EE SEL: . SES

B. The ICCPR, as a Treaty in Force, Can

and Should Be Used in Interpreting the

ING: von 00 owe cc nbhuwseedis

C. The ICCPR Supports a Finding That

Sex Discrimination in the Transmission

of Citizenship Violates the Right to

Equality Before the Law and Equal

Protection of the Law.............-.

D. No Legitimate Governmental Objective

Is Served by the Embodiment in Law of

Stereotypical Sex-based Assumptions

Fo oe bo ots wh us een

(vii)

Il. THE COURT SHOULD CONSIDER THE

CONSTITUTIONALITY OF 8 U.S.C. § 1409

WITH REFERENCE TO CUSTOMARY

INTERNATIONAL LAW .............-.-

A. Courts Have Relied on Customary In-

ternational Law as Part of Domestic

B. Sex Discrimination in the Transmission

of Citizenship Is Contrary to an Emerg-

ing Norm of Customary International

. THE UNITED STATES SUPREME COURT

IS A MODEL FOR OTHER COUNTRIES

AND SHOULD PLAY A LEADING ROLE

IN THE ESTABLISHMENT AND PROMO-

TION OF INTERNATIONAL HUMAN

PEED IY 60 00 0 0c owncen wwe sien ee 2 we

A. High Courts Around the World Look to

the Jurisprudence of the United States

Supreme Court for Guidance on Matters

OF exo 600m rcendcee se

B. By Referencing International Law in its

Judgment, the Court Can Support High

Courts in Other Countries in Their

Efforts to Promote Human Rights and

i .. .cccs ts ksanee eewa we

CED occ cece sc ccececseneseseeuns

(vill)

TABLE OF AUTHORITIES

Cases

Abdulaziz, Cabales et. al, 94 Eur. Ct. H.R. (Ser.

Pf A ee ae ree

Abebe-Jiri v. Negewo, No. 1:90-CV-2010-GET,

1993 WL 814304 (N.D. Ga. Aug. 20, 1993),

affd. 72 F.3d 844 (11th Cir. 1996) ........

Attorney-General of Botswana v. Unity Dow, CA

No. 4/91 at 50, 52-3 (Court of Appeal 1992). .

Australian Capital Television PTY Ltd. v.Aus~

tralia, 1992 Aust HighCt LEXIS 59 ....... 25

Benner v. Secretary of State of Canada, 1 S.C.R.

358, 42 C.R.R.(2d) 1 (1997) .............. 20

Board of Regents v. Roth, 408 U.S. 564, affd,

Se gn cc cbkcecs cence 25

Bolling v. Sharpe, 347 U.S. 497 (1954) ...... 25

Brown v. Board of Educ. of Topeka, 349 U.S. 294

CE ds ce ete a eee Oe 26

Califano v. Goldfarb, 430 U.S. 199 (1977) .... 14

Color Sys., Inc. v. Meteor Photo Reprographic

Sys., Inc., No. Civ. A-86-2516, 1987 WL

11085 (D.D.C. May 8, 1987) ............. 4

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469

(1975), vacated by, 214 S.E.2d 530 (Ga.

ir’ + kb ws cd eo Odean deat ie edd aes 25

Edye v. Robertson, 112 U.S. 580 (1884) ...... 4

Feldman v. United States, 322 U.S. 487

GRE ein ote. en cs) ae 24, 25

Ferreira v. Levin, CCT/5/95 (S. Afr.) ........ 24

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

is }s006eheensdebdd need tertaen 15, 16

—,—___"

(ix)

PAGE

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

eS ea eer err rr ee 16

Foster v. Neilson, 27 U.S. 253 (1829) ........ 4

Furnco Constr. Corp. v. Waters, 438 U.S. 567

PK» ane gubed-tedeene ewe weesae ket 25

Griswold v. Connecticut, 381 U.S. 479 (1965) . 25

Hoffman v. United States, 341 U.S. 479 (1951) 25

I.N.S. v. Aguirre-Aguirre, 526 U.S. 415 (1999) 5

I.N.S v. Cardoza-Fonseca, 480 U.S. 421 (1987) 5

In re Estate of Ferdinand E. Marcos Human

Rights Litig., 978 F.2d 493 (9th Cir. 1992). . 16

Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995). 15, 16

Kennedy v. Mendoza-Martinez, 372 U.S. 144

CO a eer ss Terr Tee 11

Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44

Sr errr? rte 16

Lafontant v. Aristide, 844 F. Supp. 128

i rer oe eee 16

Laker Airways, Ltd. v. Pan American World

Airways, 103 F.R.D. 42 (D.D.C. 1984) ..... 4

Martinez-Baca v. Suarez-Mason, No. 87-2057,

slip op. at 4-5 (N.D. Cal. Apr. 22, 1988) .... 16

McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973), affd, 528 F.2d 1102 (8th Cir. 1976) . 25

Meyer v. Nebraska, 262 U.S. 390 (1923) ..... 25

Miller v. Albright, 523 U.S. 420 (1998) ... 13, 14, 27

Miranda v. Arizona, 384 U.S. 436 (1966) .... 24

Mississippi University for Women v. Hogan, 458

| & §. Bi errrrrrrri rer Tere 25, 26

(x)

Mvwellie v. Ministry of Works (1995) 4 L.R.C. 184

ae ea a net oe

New York Times Co. v. Sullivan, 376 U.S. 254

I ad a aa na ee a ae a a

Newcrest Mining (WA) Ltd. & Another v. Com

monwealth of Australia & Another (1997) 147

RP lk lhe TO

Owings v. Norwood’s Lessee, 9 U.S. 344 (1809).

Paola Cassia Ursini v. Gloria Geddes y Otro, 322

I se a

Pollard’s Heirs v. Kibbe, 39 U.S. 353 (1840) ..

Rajagopal and Another v. State of Tamil Nadu

(1995) 3 L.R.C. 566 (India) ..............

Roe v. Wade, 410 U.S. 113 (1973) ...........

Summayyah Mohammed v. Moraine & Another

(1996) 3 L.R.C. 475 (Trin. & Tobago) ......

Te Rananga o Muriwhenua Inc. v. Attorney

General (1990) 2 N.Z.L.R. 641 (C.A.) ......

Tel-Oren v. Libyan Arab Republic, 726 F.2d 774

SE ed ee eee rs

Texas Dep’t of Community Affairs v. Burdine,

es as

Ullman v. United States, 350 U.S. 422 (1956) .

United States v. Decker, 600 F.2d 733 (9th Cir.

ete cadesene aud en ee Gea a ee as

United States v. James, 60 F. 257 (1894) ..... |

United States v. Smith, 18 U.S. 153 (1820) ...

United States v. Virginia, 518 U.S. 515 (1996).

7 v. Hylton, 3 U.S. 199 (1796) ..........

PAGE

(xi)

Weinberger v. Weisenfeld, 420 U.S. 636 (1975).

Whitney v. Robertson, 124 U\S/ 190 (1888)...

Statutes & Rules

Immigration and Nationality Act § 309, ch. 477,

66 Stat. 238 (1952), as amended, 8 U.S.C. §

BEE ccnvececcedesencoeosseceeseses 3, 11, 27

1980 Refugee Act, 94 Stat. 102 .............

S. Exec. Rept. 102-23, 102d Cong. 2d Sess., at 19

& i rr rrr rrr

138 Cong. Rec. S4781-01 (Apr. 2, 1992) ......

Restatement (Third) of the Foreign Relations

Law of the United States § 102(2) (1987) ...

Statute of the International Court of Justice Art.

38(1)(b), June 26, 1945, 59 Stat. 1055

on ee a

Torture Victim Protection Act of 1991, Pub. L.

No. 102-256, 106 Stat. 73 (1992)..........

Supreme Court Rule 37.6 .................

Other Authorities

Aumeeruddy Cziffra v. Mauritius, Views of the

Human Rights Committee Under Article 5(4)

of the Optional Protocol to the ICCPR Con

cerning Communication No. R.9/35, U.N.

GAOR, 36th Sess., Supp. No. 40 ..........

CCPR General Comment 28, CCPR/C/21/Rev.1/

ieee eee ewan on oi

CCPR General Comment 17 (Thirty-fifth ses-

Si PE) o> ibn eee bennedateteeuae hess

CEDAW in the Arab World, Al-Raida, Vol.15,

No. 80/81 (Winter-Spring, 1998) ..........

6, 15

(xii)

Claire L’Heureux-Dube, The Importance of

Dialogue: Globalization and the International

Impact of the Rehnquist Court, 34 Tulsa L.J.

PAGE

15, 29-30 (Pail, 1998) ................ 25, 26, 27

Committee Takes up Liechtenstein’s Report on

Compliance With Convention on Elimination

of All Forms of Discrimination Against

Women (Jan. 25, 1999) Press Release

ee ee eee

Concluding Observations of the Human Rights

Committee: Zimbabwe, CCPR/C/79/Add.89

SE Pe rey se oe

Concluding Observations of the Human Rights

Committee: Lebanon. CCPR/C/79/Add.78

A RI 7 ie AR Ug gure

Concluding Observations of the Human Rights

Committee: Libyan Arab Jamahiriya,

CCPR/C/79/Add.101 (1998) ..............

Concluding Observations of the Human Rights

Committee: Kuwait, CCPR/CO/69/KWT

RR EE ER ree Pe OED arg RETR

Convention on the Elimination of All Forms

of Discrimination Against Women, adopted

and opened for signature, Dec. 18, 1979, (entry

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

I ice aon hag citar aah ee ee oa ae

Convention for the Protection of Human Rights

and Fundamental Freedoms, entry into force,

E.T.S. No. 5, Rome 4.XI. 1950. ...........

Convention on the Rights of the Child, adopted

and opened. .for signature, Nov. 20 1989,

U.N.G.A. Doc. A/Res/44/25 (entry into force

ee ce a

Fee

(xii)

Deciarations and Reservations to CEDAW (as of

August 8, 2000), U.N. High Commissioner for

Human Rights (visited Nov. 5, 2000) <http://

www.unhchr.ch/html/menu3/b/treaty

Ec oc cnc bbunededeees 22

Declarations and Reservations to CEDAW (as of

August 8, 2000), U.N. High Commissioner for

Human Rights (visited Nov. 5, 2000)

<http://www.unhchr.ch/html/menu3/b/

treaty5_asp.htm>atn.40 ............... 6, 22

Developing Human Rights Jurisprudence: The

Domestic Application of International Human

Rights Norms,” Commonwealth Secretariat,

Human Rights Unit, pages 9-10 .......... 28

Equality Now, Words and Deeds: Holding Gov-

ernments Accountable in the Beijing +5 Re-

view Process (July, 1999) ................ 18, 23

General Comment 18, (thirty-seventh session,

1989), U.N. Doc. HRI\GEN\1\Rev.1 at 926

sR Bir aa el a ahs bee ie ele 9

Initial report of States parties due in 1992:

Zimbabwe, CCPR/C/74/Add.3. (1997) ...... 11

Initial report of States parties due in 1997:

Kuwait, CCPR/C/120/Add.1. (1999) ....... 12

Initial report of States parties due in 1993:

United States of America, CCPR/C/81/Add.4

ee ere

International Covenant on Civil and Political

Rights, adopted and opened for signature,

Dec. 16, 1966, 999 U.N.T.S. 171 (entry into

i ieeeees 5,6

(xiv)

International Covenant on Economic, Social and

Cultural Rights, adopted and opened for

signature, Dec. 16, 1966, 993 U.N.T.S. 14531

(entry into force Jan. 3, 1976) ............ 17

Jordan J. Paust, Avoiding “Fraudulent” Execu

tive Policy: Analysis of Non-Self-Execution of

the Covenant on Civil and Political Rights, 42

DePaul L.Rev. 1257 (Summer, 1993) ...... 6

Jordan J. Paust, et al., International Law and

Litigation in the U.S., (West Group 2000) .. 7, 15

Office of the United Nations High Commissioner

for Refugees’ Handbook on Procedures and

Criteria for Defining Refugees (Geneva

aaa Cee ee re en er 5

Press Release GA/9723 (June 8, 2000) (visited

Nov. 6, 2000) <http://www.un.org/News/

oe are ea eae er ae ane eee a 23

Press Release WOM/889 (Jan. 24, 1996) (visited

Nov. 6, 2000) <http://www.un.org/News/

i a eee eee haa e een ee 23

Press Release HR/CT/453 (Mar. 19, 1996) (vis-

ited Nov. 6, 2000) <http://www.un.org/News/

RE eee 20, 23

Press Release WOM/939 (Jan. 21, 1997) (visited

Nov. 6, 2000) <http://www.un.org/News/

RG et ee ie eee ee eae ee 23

Report of the Fourth World Conference on

Women, Beijing, Sept. 4-15, 1995, U.N. Doc.

A/CONF.177/20, resolution I, Annex II, 4 27-

aaah rah SOE a ae ee aa aes (ii), 13

Report of the Fourth World Conference on

Women, Beijing, Sept. 4-15 1995, U.N. Doc.

A/CONF.177/20, resolution I, Annex JJ, §

he aaa ee a a en 13

(xv)

Summary record of the 1401* meeting : United

States of America. 17/04/95.

RR ee

Summary record of the 1405" meeting : United

States of America. 24/04/95.

8 Serres

Summary record of the 1402™ meeting : United

States of America. 17/04/95.

United Nations Protocol Relating to the

Status of Refugees, 606 U.N.T.S. 267, 19

U.S.T. 6223 (entry into force, Dec. 4, 1967). .

UNICEF, The Progress of Nations 1998 (visited

ee een eee eee kee hes es

Universa! Declaration of Human Rights,

adopted and proclaimed by General Assembly

resolution 217 A (IID of Dec. 10, 1948 .....

cee aneeusess

Women’s Anti-Discrimination Committee Press

Release, WOM/1009, 366th Meeting (Jan. 22,

1998) (visited Nov. 5, 2000) <http://www.

unhchr.ch/huricane/huricane.nsf/

Oe ee a eae a

IN THE

Supreme Court of the United Strtes

No. 99-2071

TUAN AHN NGUYEN AND JOSEPH BOULAIS,

Petitioners,

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

On Writ Of Certiorari To The

United States Court Of Appeals

For The Fifth Circuit

BRIEF OF EQUALITY NOW AND OTHERS AS

AMICI CURIAE IN SUPPORT OF PETITIONERS

STATEMENT OF FACTS AND

PROCEDURAL HISTORY

Equality Now relies on the statement of facts and

procedural history set out in Petitioners’ Brief.

SUMMARY OF THE ARGUMENT

Equality Now brings to the attention of the Court the

importance of considering international human rights

law in its review of the constitutionality of 8 U.S.C.

§ 1409, the law that governs the transmission of

citizenship to children born overseas and out-of-wed-

lock. This law sets forth, in addition to the establish-

ment of paternity, other requirements for U.S. citizen

fathers to transmit citizenship to their children born

overseas and out-of-wedlock, including a written

undertaking to provide financial support, which are not

applicable to similarly situated U.S. citizen mothers.

The United States Supreme Court is a model for

countries around the world and should play a leading

role in the interpretation and application of interna-

tional law. High courts in other countries have histori-

cally looked to the jurisprudence of the Court for

guidance, and the United States Government has

frequently declared the importance of international law

and the promotion of human rights. Particularly in the

context of immigration law, the Court has looked to

and cited international law.

Under Article VI of the Constitution, all treaties

made under the authority of the United States “shall

be the supreme Law of the Land.” Following its

ratification by the United States of the International

Covenant on Civil and Political Rights (“ICCPR”) in

1992, the ICCPR constitutes a legitimate and impor-

tant source of legal authority pursuant to Article VI of

the Constitution. The ICCPR can and should be drawn

upon by the Court in support of constitutional law

arguments on issues of fundamental human rights

such as the right to equality between men and women,

which is at issue in this case. The ICCPR specifically

enumerates sex as one of the impermissible grounds of

discrimination from which all persons should be

protected.

In ratifying the ICCPR, the United States articulated

the understanding that sex-based distinctions are

permitted if rationally related to a legitimate govern-

ment objective. In reviewing the legitimacy of govern-

mental objectives served by the sex-based distinctions

set forth in 8 U.S.C. § 1409, the Court should consider

the growing international as well as national recogni-

tion that such distinctions between fathers and moth-

ers are incompatible with the equal sharing of parental

responsibility and serve to entrench stereotypes that

absolve men of this responsibility. In this conceptual

framework, no legitimate governmental objective is

served by formalizing in law traditional stereotypical

assumptions about parenting based on the sex of the

parent.

Under customary international law, recognition of

the right to equality before the law and equal protec-

tion of the law provides additional authority for the

argument that sex-based distinctions in the right of

parents to transmit citizenship to their children, as set

forth in 8 U.S.C. § 1409, are unconstitutional. Custom-

ary international law has long been recognized as legal

authority under U.S. law. Sources of customary

international law including treaties, legislative devel-

opments around the world and case law in interna-

tional as well as national jurisdictions all indicate an

emerging recognition of the right to equality between

men and women in the transmission of citizenship to

their children.

International law strongly supports the constitu-

tional law arguments of the petitioners in this case

against the constitutionality of 8 U.S.C. § 1409. A

finding of the unconstitutionality of 8 U.S.C. § 1409

with reference to international law would be a timely

and valuable contribution to the efforts of other high

courts around the world to uphold the rule of law and

promote the fundamental human rights in which the

Constitution and international law are grounded. It

would also reinforce the obligation of other nations to

change their discriminatory nationality and citizenship

laws in favor of granting mothers and fathers the equal

right to confer citizenship on their children.

ARGUMENT

I. THE COURT SHOULD CONSIDER THE

CONSTITUTIONALITY OF 8 U.S.C. § 1409

WITH REFERENCE TO THE EQUALITY

RIGHT SET FORTH IN THE UNITED NA-

TIONS INTERNATIONAL COVENANT ON

CIVIL AND POLITICAL RIGHTS (ICCPR)

A. Treaties Have the Force of Law under

the Constitution and the Court Has

Relied on Treaty Law in its Jurispru-

dence, Particularly in the Context of

Immigration.

The United States Constitution, Article VI, clause 2

(“the Supremacy Clause”) provides:

This Constitution, and the Laws of the United States

which shall be made in Pursuance thereof: and all

Treaties made, or which shall be made, under the

Authority of the United States, shall be the supreme

Law of the Land....

The status of treaties under the U.S. Constitution

has long been recognized by the Court. In 1888,

Justice Field noted, the Federal Rules and treaties are

both “supreme law of the land, and no superior efficacy

is given to either over the other.” Whitney v. Robertson,

124 U.S. 190, 194 (1888) See also Foster v. Neilson, 27

U.S. 253 (1829), Ware v. Hylton, 3 U.S. 199 (1796),

Edye v. Robertson, 112 U.S. 580, 598-99(1884), Pol-

lard’s Heirs v. Kibbe, 39 U.S. 353, 415 (1840), Owings

v. Norwood’s Lessee, 9 U.S. 344, 348-49 (1809), Laker

Airways, Ltd. v. Pan American World Airways, 103

F.R.D. 42 (D.D.C. 1984), Color Sys., Inc. v. Meteor

Photo Reprographic Sys., Inc., No. Civ. A. 86-2516,

1987 WL 11085 (D.D.C May 8, 1987). More recently,

the Ninth Circuit has affirmed that it is the role of the

judiciary “to interpret international treaties and to

enforce domestic rights arising from them.” United

States v. Decker, 600 F.2d 733, 737 (9th Cir. 1979).

Particularly in the context of interpreting the Immi-

gration and Nationality Act, the Court has considered

and cited international law in its jurisprudence.

Immigration law is an area of convergence of U.S. law

and international law as often there is a need to ensure

coordination among States in such areas as prevention

of statelessness, the facilitation of migration and the

assurance of border controls. The United Nations

Protocol Relating to the Status of Refugees, 606

U.N.T.S. 267, 19 U.S.T. 6223 (entry into force, Dec. 4,

1967), was ratified by the United States in 1968.

Although implementing legislation was passed to

incorporate the terms of the treaty in domestic law, the

Court has looked to this underlying treaty for guidance

in interpreting the law. In J.N.S. v. Cardoza-Fonseca,

480 U.S. 421, 436-40 (1987), for example, when distin-

guishing between the “well founded fear” and “clear

probability” standards for aliens seeking asylum or

withholding from deportation, the Court examined the

definition of “refugee” in the Convention on the Status

of Refugees as incorporated in the Protocol to deter-

mine its meaning under the 1980 Refugee Act, 94 Stat.

102, the implementing legislation. In J.N.S. v. Aguirre-

Aguirre, 526 U.S. 415 (1999), not only did the Court

examine provisions of this treaty, the Court even cited

the Office of the United Nations High Commissioner

for Refugees’ Handbook on Procedures and Criteria for

Defining Refugees (Geneva 1979) as “a useful interpre-

tive aide.” Id. at 426.

B. The ICCPR, asa Treaty in Force, Can

and Should Be Used in Interpreting

the Constitution.

The United States ratified the International Cove-

nant on Civil and Political Rights, adopted and opened

for signature, Dec. 16, 1966, 999 U.N.T.S. 171 (entry

into force 23 Mar. 1976), on June 8, 1992. The U.S.

transmittal of its ratification to the United Nations set

forth a number of reservations, understandings and

declarations designed to ensure consistency between

U.S. law and the treaty as ratified.* The reservations

address freedom of expression, capital punishment, the

treatment of juveniles in the criminal justice system,

and other areas of law in which the treaty’s provisions

are limited by the scope of the United States Constitu-

tion. The understandings similarly conform provisions

of the treaty to U.S. law. The declarations include a

declaration that “the provisions of articles 1 through 27

of the ICCPR are not self-executing.” 138 Cong. Rec

S4781-01, at S4784 (Apr. 2, 1992). The intent of this

declaration, as set forth in the report of the Senate

Foreign Relations Committee that gave its advice and

consent to ratification, was merely to prevent the

creation of an independent cause of action under the

treaty. SeeS. Exec. Rept. 102-23., 102d Cong. 2d Sess.,

at 19 (Mar. 24, 1992). As the present case does not rely

on the ICCPR as a basis for its cause of action, the

impact and legal status of the declaration on non-self-

execution is not relevant. The declaration has no

* Declarations and Reservations (as of Aug. 2000), U.N. High

Commisssioner for Human Rights (visited Nov. 5, 2000)

<http://www.unhchr.ch/html/menu3/b/treaty5_asp.htm>.

* The legitimacy of this declaration has been questioned by

scholars, who have suggested that it is ultra vires and void ab

initio. See Jordan J. Paust, Avoiding “Fraudulent” Executive

Policy: Analysis of Non-Self-Execution of the Covenant on Civil

and Political Rights, 42 DePaul L.Rev. 1257, 1269 (Summer,

1993). Several members of the United Nations Human Rights

Committee questioned the U.S. delegation when it presented its

initial report on implementation of the ICCPR, as to whether

under the Constitution it should fall within the jurisdiction of the

Supreme Court to decide whether a treaty is non-self-executing.

See Summary records of the 1401st and 1402nd meetings: United

States of America, 17/04/95, CCPR/C/SR/1401 934 (Ms. Evatt) and

CCPR/C/SR/1402 (Mr. Bhagwati).

bearing on the legal force of the substantive provisions

of the treaty, or their value as interpretive aides but

rather goes solely to the question of remedies and

direct creation of a cause of action.‘

In April 1995, the United States appeared before the

United Nations Human Rights Committee, to present

its initial State Party Report on implementation of the

ICCPR and to answer questions from the Committee,

the monitoring body established under Article 28 of the

treaty. At that time, a statement was made to the

Committee that implementing legislation was not

necessary or contemplated as the ICCPR’s provisions

were already covered by domestic law.° See Summary

record of the 1405" meeting: United States of America.

24/04/95. CCPR/C/SR.1405 (Mr. Shattuck). The

United States had declared in its initial report to the

Committee, “It is virtually certain that the Supreme

Court would strike down any significant distinction

between men and women in the enjoyment of the civil

and political rights secured by the Covenant, either

under the substantive right involved or as a matter of

equal protection.” Jnitial reports of States parties due

in 1993: United States of America, CCPR/C/81/Add.4

(1994) 4 105.

Following the presentation of the United States

report to the Human Rights Committee, Ms. Evatt, a

member of the Committee from Australia, asked

* Article 50 of the ICCPR mandates that “(t]he provisions of

the... Covenant shall extend to all parts of federal States without

any limitations or exception.” The non-self-executing declaration

does not apply to Article 50 of the ICCPR. See, Jordan J. Paust, et

al., International Law and Litigation in the U.S., 75-76, 398 (West

Group 2000).

° This statement gives rise to another question as to the

meaning of the non-self-executing declaration because the

characterization of the treaty provisions as non-self-executing

would normally be understood to mean that implementing

legislation was required. See note 3, supra.

a”

“whether the United States Government would encour-

age courts dealing with rights issues to refer to the

Covenant in their decisions.” Summary record of the

140 1st meeting: United States of America. 17/04/95.

CCPR/C/ SR.1401 935. Mr. Lallah, a member of the

Committee from Mauritius, expressed the hope “that

the judiciary would be made aware of the provisions of

the Covenant and the evolving standards resulting

from its implementation.” Summary record of the

1402nd meeting: United States of America. 17/04/95.

CCPR/C/SR.1402. The United States responded that

while no separate cause of action was provided for as a

result of the non-self-executing declaration, “Many

judges were well informed regarding the provisions of

the Covenant and many more would become educated

through invocation of the Covenant by litigants.”

Summary record of the 1405th meeting: United States

of America. 24/04/95 CCPR/ C/SR 45 (Mr. Shattuck).

As a treaty that has recently entered into force in the

United States, the ICCPR provides a new source of

legal authority for human rights issues that arise

under the Constitution. As demonstrated by the

dialogue between the U.S. delegation and the Human

Rights Committee, there is great interest in the role of

the courts and recognition of their importance in giving

meaning to the ratification of the treaty.

C. The ICCPR Sypports a Finding That

Sex Discrimination in the Transmis-

sion of Citizenship Violates the Right

to Equality Before the Law and Equal

Protection of the Law.

In accordance with the principles of equality and

non-discrimination set forth in the ICCPR, as well as

domestic sources of law, the United States should

guarantee its citizens the equal right to confer citizen-

ship on their children born abroad and out-of-wedlock.

Article 26 of the ICCPR provides:

All persons are equal before the law and are

entitled without any discrimination to the

equal protection of the law. In this respect,

the law shall prohibit any discrimination and

guarantee to all persons equal and effective

protection against discrimination on any

ground such as race, colour, sex, language,

religion, political or other opinion, national or

social origin, property, birth or other status.

‘This provision applies not only to rights enumerated in

the ICCPR but to all areas of public regulation. See

General Comment 18, (thirty-seventh session, 1989),

U.N. Doc. HRI\GEN\1\Rev.1 at 926 (1994). The

Human Rights Committee, in a General Comment on

the meaning of Article 26, observed that “not every

differentiation of treatment will constitute discrimina-

tion, if the criteria for such differentiation are reason-

able and objective and if the aim is to achieve a

purpose which is legitimate under the Covenant.” Jd. at

13. This interpretation of Article 26 is consistent with

the understanding transmitted by the United States

when it ratified the ICCPR that distinctions based

upon sex are to be permitted “when such distinctions

are, at minimum, rationally related to a legitimate

governmental objective.” 138 Cong. Rec S4781-01, at

S4783 (Apr.2, 1992).

Article 3 of the ICCPR provides, “The States Parties

to the present Covenant undertake to ensure the equal

right of men and women to the enjoyment of all civil

and political rights set forth in the present Covenant.”

Similarly, Article 2(1) of the ICCPR provides for equal

enjoyment of these rights without distinction of any

kind, including sex. Although the equal right of men

and women to confer citizenship on their children is not

explicitly articulated in the ICCPR, the Human Rights

Committee has in a General Comment on the interpre-

tation of Article 3 found that, “there shall be no restric-

tion upon or derogation from the equal enjoyment by

women of all fundamental human righis recognized or

existing pursuant to law, conventions, regulations of

customs, on the pretext that the Covenant does not

recognize such rights or that it recognizes them to a

lesser extent.” CCPR General Comment 28,

CCPR/C/21/Rev.1/Add.10 (2000) 99. Moreover, in

another General Comment on the interpretation of

Article 24, which gives every child the “right to acquire

a nationality,” the Human Rights Committee stated

that “no discrimination with regard to the acquisition

of nationality should be admissible under internal law

as between legitimate children and children born out of

wedlock or of stateless parents or based on the nationa-

lity status of one or both of the parents.” CCPR

General Comment 17 (Thirty-fifth session, 1989) 48.

The equality and non-discrimination provisions of the

ICCPR apvly equally to men and women.

In outlining its compliance with Article 24 of the

ICCPR, the United States in its report to the Human

Rights Committee referred to the Immigration and

Nationality Act provisions on citizenship for children

born abroad but failed to note the difference between

citizen mothers and fathers conferring nationality on

their children born abroad and out-of-wedlock.® Al-

though this issue was not raised by the Committee in

its review of implementation of the ICCPR by the

United States, i. considering reports from other

countries that have noted the existence of such laws,

the Human Rights Committee has often commented

thet discriminatory nationality and citizenship laws

* The United States reported, “The Immigration and National-

ity Act further provides that a child born abroad to a U.S. citizen

parent (or parents) shall acquire U.S. citizenship at birth provided

the U.S. citizen parent (or parents) complied with specified

requirements for residency or physical presence in the U.S. prior

to the child’s birth. 8 U.S.C. section 1401.” Initial reports of States

parties due in 1993: United States of America. CCPR/C/81/Add.4

(1994) 4 740.

fall short of compliance with the ICCPR. The Commit-

tee noted, for example, with regard to Libyan law,

which gives fathers the exclusive right to confer nation-

ality on their children’, that “inequality between men

and women persists in a number of areas, such as. . .

acquisition and transmission of nationality.” Conclud-

ing Observations of the Human Rights Committee:

Libyan Arab Jamahiriya, CCPR/C/79/Add.101 (1998)

417. The Committee expressed similar concern with

regard to a law in Lebanon, which provides that

nationality is granted only to the children of Lebanese

fathers with few exceptions. See Concluding Observa-

tions of the Human Rights Committee: Lebanon.

CCPR/C/79/Add.78 (1997) 418.

In the context of potential statelessness of children’,

the Human Rights Committee has also expressed its

concern about laws that treat mothers and fathers

differently in the transmission of citizenship to chil-

dren. In Zimbabwe, according to the government, the

law provides that “children who are born outside

Zimbabwe acquire citizenship if the father or, in the

case of an illegitimate child, the mother is at the time

of birth a citizen of Zimbabwe,” Initial reports of States

parties due in 1992: Zimbabwe, CCPR/C/74/Add.3.

(1997) 4234. This law led the Committee to note that

“children born to Zimbabweans abroad may not acquire

’ See CEDAW in the Arab World, Al-Raida, Vol.15, No. 80/81

at 27 (Winter-Spring, 1998). .

® The Court has recognized that avoidance of statelessness is

an “issue of the utmost import.” Kennedy v. Mendoza-Martinez,

372 U.S. 144 , 160 (1963). Most countries with discriminatory

laws on transmission of citizenship provide for transmission of

citizenship through fathers rather than mothers. Although there

are usually exceptions for children born out-of-wedlock, it is

possible that 8 U.S.C. § 1409, operating in conjunction with laws

in other countries that deny women the right to transmit citizen-

ship, could result in the statelessness of a child born out-of-

wedlock and abroad.

Zimbabwean citizenship.” Concluding Observations of the

Human Rights Committee: Zimbabwe, CCPR/C/79/Add.89

(1998) 419. With regard to Kuwait, where the law re-

stricts to fathers the right to transmit citizenship, with few

exceptions,’ the Committee noted that “children who are

born in Kuwait and whose parents are stateless or only the

mother has Kuwaiti nationality do not acquire any nation-

ality.” Concluding Observations of the Human Rights

Committee: Kuwait, CCPR/CO/69/KWT (2000) 417.

The jurisprudence of the Human Rights Committee,

both in its General Comments and through its ongoing

dialogue with States Parties, clearly establishes that laws

that discriminate in the transmission of citizenship to

children based on the sex of their parents areincompatible

with the ICCPR.

D. NoLegitimate Governmental Objective

Is Served by the Embodiment in Law of

Stereotypical Sex-based Assumptions

about Parenting.

In judging the legitimacy of governmental objectives set

forth to justify sex-based distinctions in 8 U.S.C. § 1409,

the Court should consider that internationally, as well as

domestically, there is a growing recognition that distinc-

tions based on differences in the parenting roles of fathers

and mothers have no validity. The differentiation of

mothers and fathers in transmission of citizenship to their

children is not “reasonable and objective,” nor is its aim “to

achieve a purpose which is legitimate under the Cove-

nant,” as required by Article 26 of the ICCPR. Moreover,

the ICCPR standard of review is equivalent to a lower

standard of review than the standard applicable to this

case. See Brief for Petitioners, Section II., 24-32.

The Convention on the Elimination of All Forms of

Discrimination Against Women, adopted and opened

for signature, Dec. 18, 1979, entry into force Sept. 3,

* See Initial report of States parties due in 1997: Kuwait,

CCPR/C120/Add. 1 (1999) at 300-301.

1981, 1249 U.N.T.S. 20378, (“CEDAW”), a treaty that

has been ratified by virtually every country in the

world, states in its preamble that “the role of women in

procreation should not be a basis for discrimination but

that the upbringing of children requires a sharing of

responsibility between men and women and society as

a whole,” and that “a change in the traditional role of

men as well as the role of women in society and in the

family is needed to achieve full equality between men

and women.” Article 5(a) of CEDAW provides that

“States Parties shall take all appropriate measures to

modify the social and cultural patterns of conduct of

men and women, with a view to achieving the elimina-

tion of prejudices and customary and all other practices

which are based on the idea of the inferiority or the

superiority of either of the sexes or on stereotyped roles

for men and women.” Article 5(b) provides for “the

recognition of the common responsibility of men and

women in the upbringing and development of their

children...”

More recently, the Platform for Action adopted by the

United Nations in 1995 in Beijing notes that “[iJn many

countries, the differences between women’s and men’s

achievements and activities are still not recognized as

the consequences of socially constructed gender roles

rather than immutable biological differences,” and that

“the upbringing of children requires shared responsibil-

ity of parents, women and men and society as a whole.”

Report of the Fourth World Conference on Women,

Beijing, Sept. 4-15, 1995, U.N. Doc. A/CONF.177/20,

resolution I, Annex II, 4 27-29.

These international principles of equality are mir-

rored in the jurisprudence of this Court. In Miller v.

Albright, 523 U.S. 420 (1998), considering the INA

provision at issue in this case, Justice Breyer noted

that the validity of the statute depended on “the

generalization that mothers are significantly more

likely than fathers to care for their children, or to

develop caring relationships with their children.” Jd. at

482-83 (1998) (Breyer, J., dissenting). Justice

Ginsburg noted that the law in treating mothers and

fathers differently was “shaping government policy to

fit and reinforce the stereotype or historic pattern.” Jd.

at 460 (Ginsburg, J., dissenting). This Court has long

recognized that the government should not rely on

“overbroad generalizations about the different talents,

capacities, or preferences of males and females.”

United States v. Virginia, 518 U.S. 515, 533 (1996)

citing Weinberger v. Weisenfeld, 420 U.S. 636, 648

(1975), Califano v. Goldfarb, 430 U.S. 199, 223-224

(1977).

The presumption that fathers have an inherently less

natural relationship with their children than mothers

is belied by the facts of this case in which the father

served as the primary care-giver. To penalize him as

a father through a law that places obligations on him

to ensure the transmission of citizenship to his chil-

dren, which obligations are not placed on a similarly

situated mother, is unjust. The law is also out of sync

with the nationally and internationally recognized

need for the elimination of gender stereotypes and runs

contrary to the proactive measures governments have

committed to undertake for the promotion of equality

between men and women.

Il. THE COURT SHOULD CONSIDER THE

CONSTITUTIONALITY OF 8 U.S.C. § 1409

WITH REFERENCE TO CUSTOMARY

INTERNATIONAL LAW

A. Courts Have Relied on Customary

International Law as Part of Domes-

tic Law.

Customary international law, also known as “the law

of nations,” comprises rules that are “evidence of a

general practice accepted as law.” Statute of the

International Court of Justice Art. 38(1)(b), June 26,

1945, 59 Stat. 1055, 1060 (1945). According to the

Restatement (Third) of the Foreign Relations Law of the

United States § 102(2) (1987), customary international

law “results from a general and consistent practice of

states which is followed by them from a sense of legal

obligation.” International conventions, international

custom, as evidence of a general practice accepted as

law, the general principles of law recognized by civi-

lized nations and judicial decisions are all considered

sources of international law. Jd. at § 102 n.1.

Because general patterns of opinio juris and unifor-

mity of behavior establish customary international law,

the norms of customary international law are continu-

ally evolving. See Kadic v. Karadzic, 70 F.3d 232, 238

(2d Cir. 1995) citing Filartiga v. Pena-Irala, 630 F.2d

876, 881 (2d Cir. 1980) (that “the courts must interpret

international law not as it was in 1789, but as it has

evolved and exists among the nations of the world

today”). Customary international law “may be ascer-

tained by consulting the works of jurists, writing

professedly on public law, or by the general usage and

practice of nations; or by judicial decisions recognizing

and enforcing that law.” United States v. Smith, 18

U.S. 153, 160-61 (1820); See also Filartiga v. Pena-

Irala, 630 F.2d at 876, 881 citing the Statute of the

International Court of Justice as enumerating treaties,

international custom, general principles of law, judicial

decisions and teachings as sources international law to

be applied.

In recent U.S. jurisprudence, customary interna-

tional law has played a significant role in cases relat-

ing to violations of fundamental human rights. Cus-

tomary international law has also been used to inform

the meaning of or to enhance constitutional powers,

rights and duties. See generally Jordan J. Paust, et. al,

International Law and Litigation in the U.S. (West

Group 2000). In a landmark ruling, the Second Circuit

interpreted a 1789 statute, the Alien Tort Claims Act,

in the context of evolving customary norms, naming

torture as the piracy of the twentieth century. See

Pena-Irala, 630 F.2d at 880. Numerous subsequent

cases have relied on customary international law to

help define the contours of accountability under U.S.

law for torture and other human rights violations. See

Karadzic, 70 F.3d at 232, Tel-Oren v. Libyan Arab

Republic, 726 F.2d 774 (D.C. Cir. 1984), Forti v.

Suarez-Mason, 672 F. Supp. 1531, 1544 (N.D. Cal.

1987), Martinez-Baca v. Suarez-Mason, No. 87-2057,

slip op. at 4-5 (N.D. Cal. Apr. 22, 1988), Klinghoffer v.

S.N.C. Achille Lauro, 937 F.2d 44 (2d Cir. 1991), In re

Estate of Ferdinand E. Marcos Human Rights Litig.,

978 F.2d 493, 502 (9th Cir. 1992), Abebe-Jiri v. Negewo,

No. 1:90-CV-2010-GET, 1993 WL 814304 (N.D. Ga.

Aug. 20, 1993), affd, 72 F.2d 844 (11th Cir. 1996),

Lafontant v. Aristide, 844 F.Supp. 128 (E.D.N.Y. 1994).

Customary international law relating to torture has

been interwoven with U.S. legislation through the

Torture Victim Protection Act of 1991, Pub. L. No. 102-

256, 106 Stat. 73 (1992) codifying this norm. The

interaction between domestic and international law

represented by this recent jurisprudence should be

replicated in jurisprudence on equality through recog-

nition of equality as a fundamental human right under

customary international law.

B. Sex Discrimination in the Transmis-

sion of Citizenship Is Contrary to an

Emerging Norm of Customary Inter-

national Law.

Numerous human rights treaties, declarations and

resolutions, including the Universal Declaration of

Human Rights”, the ICCPR, the International Cove

proclaimed by General Assembly resolution 217 A (IID of Dec. 10,

nant on Economic, Social and Cultural Rights"’

(‘ICESCR”), CEDAW” and the Convention on the

Rights of the Child’* (“CRC”) recognize equality be-

tween men and women to be a fundamental human

right. Article 9(2) of CEDAW, a treaty specifically

focused on women’s rights, articulates the equality

principle with specific reference to citizenship, provid-

ing, “States Parties shall grant women equal rights

with men with respect to the nationality of their chil-

dren.” The United States has signed but not yet

ratified CEDAW, ICESCR and the CRC. However,

these treaties, CEDAW and the CRC in particular,

have been ratified by a broad spectrum and overwhelm-

1948. Article 7 states, “All are equal before the law and are

entitled without any discrimination to equal protection of the law.

All are entitled to equal protection against any discrimination in

violation of this Declaration and against any incitement to such

discrimination.” The Second Circuit has noted the conclusion of

several commentators that the Universal Declaration of Human

Rights has become “in toto, a part of binding customary interna-

tional law.” Pena-Irala, 630 F.2d at 883.

‘! International Covenant on Economic, Social and Cultural

Rights, adopted and opened for signature, Dec. 16, 1966, 993

U.N.T.S. 14531 (entry into force Jan. 3, 1976). Article 2 (2)

provides, “The States Parties to the present Covenant undertake

to guarantee that the rights enunciated in the present Covenant

will be exercised without discrimination of any kind as to . . . sex

... or other status.” Article 3 reads, “The States Parties to the

present Covenant undertake to ensure the equal right of men and

women to the enjoyment of all economic, social and cultural rights

set forth in the present Covenant.”

Article 15 of CEDAW provides, “States Parties shall accord

to women equality with men before the law.”

'® Convention on the Rights of the Child, adopted and opened

for signature, Nov. 20 1989, U.N.G.A. Doc. A/Res/44/25 (entry into

force Sept. 2, 1990). Article 2(1) provides, “States Parties shall

respect and ensure the rights set forth in the present Convention

to each child within their jurisdiction without discrimination of

any kind, irrespective of the child’s or his or her parent's or legal

guardian's... sex... or other status.”

ingly large number of countries. Their equality provi-

sions are an important source of customary interna-

tional law and should be recognized as such by the

Court.

The United Nations has convened four world confer-

ences on women to address issues relating to equality,

in Mexico City in 1975, in Copenhagen in 1980, in

Nairobi in 1985, and in Beijing in 1995. Recently, the

United Nations convened a Special Session of the

General Assembly in June 2000 in New York to assess

the implementation of the Beijing Platform for Action

adopted at the Fourth World Conference on Women in

1995. The declarations issued by all of these confer-

ences prominently highlight the commitment made by

governments around the world to equality between

men and women. This commitment has been reaf-

firmed in other Uniied Nations world conferences as

well, including the United Nations World Summit for

Children in New York in 1990, the United Nations

Conference on Environment and Development in Riode’

Janeiro in 1992, the World Conference on Human

Rights in Vienna in 1993, the United Nations Interna-

tional Conference on Population and Development in

Cairo in 1994 and the World Summit for Social Devel-

opment in Copenhagen in 1995, all of which have

upheld the principle of equality between men and

women.

The right to equality and the prohibition of discrimina-

tion on the basis of sex are also enumerated in Constitu-

tions of countries around the world. A representative

sampling of such countries includes Algeria, The Baha-

mas, Bangladesh, Bolivia, Cameroon, _ Colombia,

E ia, India, Japan, Latvia, Lesotho, Madagascar,

~~ Mali, ysia, Mexico, Monaco, Morocco, Nepal, Nigeria,

Pakistan, Peru, Poland, the Sudan, Switzerland, Tanza-

nia, Turkey; Uruguay and Venezuela. See Equality Now,

Words and Deeds - Holding Governments Accountable in

the Beijing +5 Review Process (July, 1999).

Although many countries still have laws that dis-

criminate on the basis of sex in the transmission of

citizenship, there is a clear and accelerating trend

towards the elimination of such laws, in accordance

with constitutional and international law norms.

While most of these laws deny women rights that men

have, the principle of non-discrimination applies

equally to men and women.

In Botswana, the case of Unity Dow, now herself a

judge on the High Court, successfully challenged the

discriminatory law that barred her from transmitting

citizenship to her children, born in Botswana. In that

case, on the basis of Botswana’s constitutional equality

provision, the Court of Appeal struck down this provi-

sion of the Citizenship Act, which denied Botswana

citizenship to any child born within a marriage if, at

the time of birth, the father was not a citizen of Bot-

swana. The father in this case was a U.S. citizen. The

Court.of Appeal cited international law, specifically the

African Charter on Human and Peeples’ Rights and the

Declaration on the Elimination of All Forms of Discrim= ~~

ination Against Women, in finding the r ~eter sr cern

law unconstitutional. See Attorney-General of Bot-

swana v. Unity Dow, CA No. 4/91 at 50, 52-3 (Court of

Appeal 1992). |

In Canada, the Supreme Court struck. dowat-provi- 7

-sions of the Canadian Citizenship Act requiring chil-

dren of Canadian mothers but not Canadian fathers to

submit to a security check in order to be deemed

Canadian citizens at birth. The Canadian Supreme

Court found this law to be discriminatory in violation

of section 15 of the recently adopted Canadian Charter

of Rights and Freedoms. In its decision on the citizen-

ship law, which is analogous to the law at issue in this

case, the court held, “Only children born abroad of

Canadian mothers may be legally denied citizenship

because of unwillingness to swear an oath. This...

constitutes a denial of equal benefit of the law. Access

to the valuable privilege of Canadian citizenship is

restricted in different degrees depending on the gender

of an applicant's Canadian parent.” Benner v. Secretary

of State of Canada, 42 C.R.R.2d 1, __ (available on

WestLaw 1997 CarswellNat 190 at 25). With regard to

the justification for the distinction put forward by the

government, the Canadian Supreme Court said, “the

gender of acitizenship applicant’s Canadian parent has

nothing to do with the values of personal safety, nation-

building or national securities.” Jd. at 24.

Discriminatory citizenship laws have also been

challenged successfully through various adjudicative

proceedings at the international level. The Human

Rights Committee, through its individual complaints

procedure established by the Optional Protocol to the

ICCPR, found that a discriminatory citizenship law in

Mauritius violated the equality provisions set forth in

the ICCPR, specifically articles 2(1), 3 and 26 in conjunc-

tion with article 23(1). See Aumeeruddy Cziffra v.

Mauritius, Views of the Human Rights Committee

Under Article 5(4) of the Optional Protocol to the ICCPR

Concerning Communication No. R.9/35, U.N. GAOR,

36" Sess., Supp. No. 40, U.N. Doc. A/36/40 (1981). The

Mauritian Immigration (Amendment) Act and the

Deportation (Amendment) Act limited residency rights

of alien men married to Mauritian women without

similar limitations on alien women married to Mauri-

tian men. Subsequent to this finding, Mauritius

changed its law, eliminating the discriminator. >rovi-

sion. See Press Release HR/CT/453 (Mar. 19, 1996)

(visited Nov. 6, 2000) <http://www.un.org/News/ Press>

(stating that Section 16 of the Constitution was

amended in 1995 to make unconstitutional any law

involving discrimination on the grounds of sex, including

citizenship laws).

The European Court of Human Rights has also ruled

against discriminatory immigration provisions. In a

case brought against the United Kingdom, the Court

found the U.K. had violated Article 14, in conjunction

with Article 8, of the European Human Rights Conven-

tion” as a result of the different way in which male and

female immigrant residents of the UK were treated in

terms of obtaining permission for their wives or hus-

bands to enter or remain in the country. In its decision

the court stated, “As to the present matter, it can be

said that the advancement of the equality of the sexes

is today a major goal in the member States of the

Council of Europe. This means that very weighty

reasons would have to be advanced before a difference

of treatment on the ground of sex could be regarded as

compatible with the Convention.” Abdulaziz, Cabales

et. al, 94 Eur. Ct. H.R. (Ser. A) at 778 (1985). The court

rejected the justification given by the U.K. for its

discriminatory law, the intent to protect the labor

market, as not sufficient to warrant discrimination on

the basis of sex. See id. The court also rejected the

argument that the U.K. was not in violation of Article

14, the equality right set forth in the European Con-

vention on Human Rights, because it was more gener-

ous to immigrant men settled in the U.K. than would

= be required by the Convention. See id. at

82.

There is also a clear legislative trend in which many

countries around the world have amended their laws to

give parents the equal right to transmit citizenship to

their children. Such countries include Japan, Switzer-

land, Italy, Vietnam, Luxembourg, Malta, Thailand,

India, South Africa, and Botswana."° Some countries

'* Convention for the Protection of Human Rights and Funda-

mental Freedoms, entry into force, E.T.S. No. 5, Rome 4.XI. 1950.

Article 14 provides, “The enjoyment of the rights and freedoms set

forth in this Convention shall be secured without discrimination

on any ground such as sex, race, colour, language, religion,

political or other opinion, national or social origin, association with

a national minority, property, birth or other status.”

'® “Japan and Switzerland amended their laws on this issue in

have acknowledged their international obligation to

change discriminatory citizenship laws by withdrawing

reservations to Article 9 of CEDAW following such

legislative changes. In 1999 the Republic of Korea

withdrew its reservation to this Article’ following a

change in its Nationality Act, which had previously

required children born to a Korean mother and foreign

father to take the nationality of their father. The 1997

Nationality Act confers equal citizenship rights. See

Korea Legislation Institute, Statutes of the Republic of

Korea (Supp.4) at 261.

Liechtenstein is another country that has withdrawn

its reservation Article 9(2) of CEDAW as a consequence

of legislative changes granting men and women equal

rights to confer citizenship on foreign spouses and on

their children.’ Fiji also recently withdrew its reserva-

tions to Art. 9(2) of CEDAW following the passage of a

Constitutional Amendment Act, which provides that a

child born outside Fiji may become a citizen if either

parent was a citizen on the date of birth." Cyprus”,

1985; Italy in 1987; Vietnam in 1988; Luxembourg and Malta in

1989; Thailand in 1991; India in 1992; South Africa in 1994; and

Botswana in 1995." UNICEF, The Progress of Nations 1998

(visited Nov. 6, 2000) <http://Awww. unicef.org/pon98/pon98. pdf>.

8, 2000), U.N. High Commissioner for Human Rights (visited Nov.

5, 2000) <http:/Awww.unhchr.ch/html/menu3/b/treaty9_asp.htm>

at n.40.

'’ Committee Takes up Liechtenstein’s Report on Compliance

With Convention on Elimination of All Forms of Discrimination

Against Women (Jan. 25, 1999) Press Release WOM/1083.

'® See Declarations and Reservations to CEDAW (as of August

8, 2000), (visited Nov. 5, 2000) <www.unhchr.ch/html/menu3/b/

treaty5_asp.htm> at n. 45.

'8 Td. at n.46.

Malaysia” and The Bahamas”' announced their inten-

tion to withdraw their reservations to Article 9(2) of

CEDAW upon the anticipated amendment of their

citizenship laws to ensure the equal rights of men and

women. A similar trend to remove discriminatory laws

governing the transmission of citizenship to spouses

includes recent changes in Venezuela”, Zimbabwe”, St.

Vincent and the Grenadines™, Ethiopia”, and Mauri-

tius””.

Sex discrimination in transmitting citizenship cannot

be justified because it is deliberately more “lenient”

with regard to women. Treaty law, national and

international case law and recent legislative develop-

ments around the world evidence a customary interna-

tional law norm prohibiting discrimination on the basis

of sex in the transmission of citizenship to children,

which the United States Supreme Court should incor-

porate and support in interpreting the Constitution.

2 Td. at n.32.

*! See Press Release GA/9723 (June 8, 2000) (visited Nov. 6,

2000) <http:/Awww.un.org/News/Press>.

# Article 33 of the 1999 Venezuelan Constitution provides for

the acquisition of Venezuelan citizenship by “foreigners who

contract marriage with a Venezuelan man or woman...” whereas

Articles 37 and 38 of the previous Constitution prohibited

Venezuelan women from transferring citizenship to their foreign-

born spouses. Equality No Words and Deeds - Holding Govern-

ments Accountable in the Beyjing +5 Re view Process (July, 1999).

*3 See Women’s Anti-Discrimination Committee Press Release,

WOM/1009, 366th Meeting (Jan. 22, 1998) (visited Nov. 5, 2000)

<http://www.unhchr.ch/huricane/huricane.nsf/newsroom>.

*4 See Press Release WOM/939 (Jan. 21, 1997) (visited Nov. 6,

2000) <http:/Awww.un.org/News/Press>.

25 See Press Release WOM/889 (Jan. 24, 1996) (visited Nov. 6,

2000) <http:/Awww.un.org/News/Press>.

%® See Press Release HR/CT/453 (Mar. 19, 1996) (visited Nov. 6,

2000) <http:/Awww.un.org/News/Press>.

Ill. THE UNITED STATES SUPREME COURT

IS A MODEL FOR OTHER COUNTRIES

AND SHOULD PLAY A LEADING ROLE IN

THE ESTABLISHMENT AND PROMOTION

OF INTERNATIONAL HUMAN RIGHTS

LAW

A. High Courts Around the World Look

to the Jurisprudence of the United

States Supreme Court for Guidance

on Matters of Human Rights.

Historically, the United States has played a leading

role in the development of jurisprudence on fundamen-

tal issues of human rights, which has served as a model

for international law and for constitutional protection

of rights in many countries. Courts interpreting their

Constitutions, which in many cases have been adopted

recently, have relied heavily on U.S. principles of

justice and on decisions of the United States Supreme

Court.

In South Africa, which adopted a new Constitution in

1993, the Constitutional Court in reviewing the right

to freedom from self-incrimination, an issue of first

impression, noted the important role of the U.S.

Supreme Court as follows:

When for example, the United States Supreme

Court finds that a statutory provision is or is

notin accordance with the “due process of law”

... we have regard to these findings, not in

order to draw direct analogies, but to identify

the underlying reasoning with a view to estab-

lishing the norms that apply in other open and

democratic societies based on freedom and

equality. Ferreira v. Levin, CCT/5/95 (S.Afr.).

This decision cited several United States Supreme

Court judgments including Miranda v. Arizona, 384

U.S. 436 (1966), Feldman v. United States, 322 U.S.

—E —————— — +

487 (1944), Hoffman v. United States, 341 U.S. 479

(1951), United States v. James, 60 F. 257 (1894),

Ullman v. United States, 350 U.S. 422 (1956), Bolling

v. Sharpe, 347 U.S. 497 (1954) Board of Regents v.

Roth, 408 U.S. 564, affd, 408 U.S. 593 (1972) and

Meyer v. Nebraska, 262 U.S. 390 (1923).

In India, the Supreme Court looked to the jurispru-

dence of the United States Supreme Court in consider-

ing freedom of expression and privacy issues.”’ In its

decision, the Indian Supreme Court cited New York

Times Co. v. Sullivan, 376 U.S. 254 (1964), Cox

Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975),

vacated, 214 S.E.2d 530 (Ga. 1975), Griswold uv.

Connecticut, 381 U.S. 479 (1965) and Roe v. Wade, 410

U.S. 113 (1973). The High Court in Australia also

looked to the Court’s decisions when it implied a

constitutional protection for freedom of expression in

relation to public affairs. Australian Capital Televi-

sion PTY Ltd. v. Australia, 1992 Aust HighCt Lexis

59. In Namibia, when interpreting the equality

provision of its new constitution, the High Court

looked to decisions from the United States Supreme

Court, as well as decisions from the high courts of

Canada, England, India, Malaysia and South Africa.”

In Argentina, the Supreme Court of Justice of the

Nation considered the jurisprudence of the United

States Supreme Court in a the context of a discrimina-

tion case, citing Texas Dep’t of Community Affairs v.

Burdine, 450 U.S. 248 (1981), McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973), affd, 528 F.2d

1102 (8th cir. 1976), Furnco Constr. Corp. v. Waters,

*7 See Claire L'Heureux-Dube, The Importance of Dialogue:

Globalization and the International Impact of the Rehnquist Court,

34 Tulsa L.J. 15, 29-30 (Fall, 1998) citing Rajagopal and Another

v. State of Tamil Nadu (1995) 3 L.R.C. 566 (India).

8 Mwellie v. Ministry of Works (1995) 4 L.R.C. 184 (Namib)

cited in L_Heureux-Dube, supra note 27 at 21.

438 U.S. 567 (1978) and Mississippi University for

Women v. Hogan, 458 U.S. 718 (1982). See Paola

Cassia Ursini v. Gloria Geddes y Otro, 322 Fallos 2382

(1999).

Certain individual decisions of the United States

Supreme Court on fundamental equal protection

issues, such as Brown v. Board of Education of To-

peka, 349 U.S. 294 (1955) have had a particularly

global impact. This decision has been cited in the

courts of Trinidad and Tobago, when considering the

expulsion of a student from school for wearing a hijab

(veil)**, as well as a court in New Zealand when

considering a treaty on Maori fishing rights.*° Ameri-

can precedents were cited by these courts not only

because they are applicable but also “because they

stand for a principle and an approach to constitutional

interpretation.” Claire L’Heureux-Dube, The Impor-

tance of Dialogue: Globalization and the International

Impact of the Rehnquist Court, 34 Tulsa L.J. 15, 28

(Fall, 1998).

B. By Referencing International Law

in its Judgment, the Court Can Sup-

port High Courts in Other Countries

in Their Efforts to Promote Human

Rights and the Rule of Law.

The pronouncements of this Court are an important

source of authority and to the extent that they incor-

porate or reflect the principles of international law,

their application will be of greater value not only for

Americans but for all citizens of the world. As Justice

Kirby of the Australian High Court noted in a decision

of that court:

*° Summayyah Mohammed v. Moraine & Another (1996) 3

L.R.C. 475, 493 (Trin. & Tobago).

*° Te Rananga o Muriwhenua Inc. v. Attorney General (1990) 2

N.Z.L.R. 641, 656 (C.A.).

To the full extent that its text permits, Aus-

tralia’s Constitution, as the fundamental law

of government in this country, accommodates

itself to international law, including insofar

as that law expresses basic rights. The

reason for this is that the Constitution not

only speaks to the people of Australia who

made it and accepted it for their governance.

It also speaks to the international community

as the basic law of the Australian nation

which is a member of that community.

Newcrest Mining (WA) Ltd. & Another uv.

Commonwealth of Australia & Another (1997)

147 A.L.R. 42, 148 (Austl.).

Justice Claire L’Heureux-Dube of the Supreme

Court of Canada has written of the importance of

dialogue among high courts, expressing concern that

the United States Supreme Court has not played a

stronger role in this dialogue by taking note of inter-

national and comparative law arguments in its

jurisprudence. *' In this convext she specifically cites

Miller v. Albright, 523 U.S. 420 (1998), in which the

Court considered the constitutionality of 8 U.S.C.

§ 1409, as an example of a case in which the Court

might have looked beyond the borders of the United

States to such sources and drawn additional strength

from them for its opinions.** A high level judicial

colloquium was convened in 1988 in India on the

domestic application of international human nights

norms. The “Bangalore Principles” adopted by the

meeting, in which judges from around the world

(including The United States) participated, affirm

that “international human rights instruments provide

*! Claire L’Heureux-Dube, The Importance of Dialogue:

Globalization and the International Impact of the Rehnquist Court,

34 Tulsa L.J. 15, 40 (Fall, 1998).

82 Td. at 39.

important guidance in cases concerning fundamental

human rights and freedoms.”

Promoting the rule of law in other countries has

long been an objective of the United States Govern-

ment. The important role of international law was

specifically cited by President Bush in connection with

the ratification of the ICCPR. In a letter to Chairman

Claiborne Pell of the Senate Foreign Relations Com-

mittee, President Bush wrote, “The Covenant codifies

the essential freedoms people must enjoy in a demo-

cratic society, such as. . . equal protection of the law.

.. U.S. ratification would also strengthen our ability

to influence the development of appropriate human

rights principles in the international community and

provide an additional effective tool in our efforts to

improve respect for fundamental freedoms in many

problem countries around the world.” 102d Cong., 2d

Sess., 24 March 1992, Exec. Rept. 102-23, Appendix A.

As the ICCPR has now been ratified, reference to it

as well as to other sources of international law would

complement efforts by the United States Government

to promote human rights and the rule of law interna-

tionally. The United States Supreme Court has a

unique role to play in this regard, having so greatly

influenced the jurisprudence of other high courts

around the world.

°° Reprinted in “Developing Human Rights Jurisprudence: The

Domestic Application of International Human Rights Norms,”

Commonwealth Secretariat, iluman Rights Unit, pages ix-x.

CONCLUSION

For the foregoing reasons Amici respectfully submit

that the Court should reverse the judgment of the United

States Court of Appeals for the Fifth Circuit and recog-

nize the equal right of men and women to confer citizen-

ship on their children in reference not only to the United

States Constitution but also to the International Cove-

nant on Civil and Political Rights and the customary

international law principle of equality before the law and

equal protection of the law from discrimination on the

basis of sex.

Dated: New York, New York

November 13, 2000

OGDEN NORTHROP LEWIS

Counsel of Record

DAVIS POLK & WARDWELL JESSICA NEUWIRTH

450 LEXINGTON AVENUE EQUALITY NoW

NEW YORK, N.Y. 10017 250 WEST 57TH STREET

(212) 450-4000 NEW YORK, N.Y. 10107

(212) 586-0906

Attorneys for Amici |

Equality Now

Argentine Association of Women Judges

Ethiopian W men Lawyers Association

Forum for Women, Law and Development

International Commission of Jurists

International Federation of Women Jurists

International Federation of Women Lawyers

International Human Rights Law Group

International Women’s Rights Action Watch

Latin American and Canbbean Committee for the

Defense of Women’s Rights

Women in Law and Development in Africa

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.