# Amicus Curiae Brief — Tuan Anh Nguyen v. INS

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2001
- **Citation:** 533 U.S. 53

## Text

Supreme Court," °.
ee an
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,

v

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

EEE
—_—_—_— ibn eee bennedateteeuae hess

CEDAW in the Arab World, Al-Raida, Vol.15,
No. 80/81 (Winter-Spring, 1998) ..........

6, 15

20

10

10

11

(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

22

12

11

11

12

13

13

17

Fee

(xii)

Deciarations and Reservations to CEDAW (as of
August 8, 2000), U.N. High Commissioner for
Human Rights (visited Nov. 5, 2000) 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) .

* 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).

7

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:

9

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

10

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.

11

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.

12

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.

13

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

14

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

15

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

16

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

© Universal Declaration of Human Rights, adopted and
proclaimed by General Assembly resolution 217 A (IID of Dec. 10,

17

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.”

18

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).

19

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

20

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)
(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

21

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

22

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) .

'© See Declarations and Reservations to CEDAW (as of August
8, 2000), U.N. High Commissioner for Human Rights (visited Nov.
5, 2000)
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) at n. 45.

'8 Td. at n.46.

23

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) .

# 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)
.

*4 See Press Release WOM/939 (Jan. 21, 1997) (visited Nov. 6,
2000) .

25 See Press Release WOM/889 (Jan. 24, 1996) (visited Nov. 6,
2000) .

%® See Press Release HR/CT/453 (Mar. 19, 1996) (visited Nov. 6,
2000) .

24

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 —————— — +

25

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.

26

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.).

27

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.

28

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.

29

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0385%3A09. Public record. Not legal advice.