Human rights purposes of the Violence Against Women Act and international law's enhancement of congressional power.

• Author: Paust, Jordan J.

An important issue pending before the U.S. Supreme Court(1) is whether Congress has constitutionally based power to enact the Violence Against Women Act (VAWA).(2) Although some have focused on congressional power under the Commerce Clause,(3) treaty-based and customary international law concerning fundamental human rights of women, coupled with other provisions of the Constitution, also provide an enhancement of congressional power to enact the VAWA.(4) This essay identifies a purpose of the VAWA as partly to protect human rights of women to freedom from gender-based violence. The essay also identifies constitutionally-based enhancement of congressional power to implement international law.

1. VAWA'S PURPOSE: PARTLY TO PROTECT HUMAN RIGHTS

   1. International Legal and Domestic Media Backgrounds

      In 1994, prior to enactment of the VAWA, the Declaration on the Elimination of Violence Against Women(5) recognized gender-based violence as a matter of serious concern to the international community. Also in 1994, and prior to enactment of the VAWA, the U.N. Commission on Human Rights appointed a Special Rapporteur on Violence Against Women to assure more adequate implementation of the human rights of women to freedom from violence.(6) Previously, there had also been global attention to domestic violence as a matter of significant international concern and as a serious human rights infraction.(7) In 1993 and 1994, domestic media in the United States also brought attention to the fact that domestic violence against women involves human rights violations, and several articles expressly noted that drafts of the VAWA would aid in protecting women's human rights to freedom from gender-based violence.(8) Congress, and especially the Executive branch as a key participant in the international legal process, could not have been unaware of such attention, the human rights dimension of domestic violence against women, or the purpose of the draft legislation in part to protect human rights of women. Indeed, there are several recognitions of the interface between human rights and domestic violence against women in statements of congresspersons in 1993 as well as the human rights-protecting nature of the proposed VAWA, as noted below.

   2. Congressional and Executive Recognitions

      Part of the Violence Against Women Act contains provisions enabling battered immigrant women to obtain protections,(9) thus evidencing a congressional purpose in part to address problems of domestic violence involving transnational processes or contexts in which immigrants in this country have a need for special domestic legal protections. These and other parts of the Act applying more broadly to women tend to serve human rights of the victims of domestic violence, as recognized by the Executive Branch. Importantly, during the first U.S. Report to the Human Rights Committee of the International Covenant on Civil and Political Right(10) on U.S. compliance with obligations under the treaty to ensure respect for relevant human rights(11) and to enact appropriate legislation,(12) the Executive assured the international body that the Violence Against Women Act was a measure undertaken in part to comply with and execute such treaty obligations.(13) Prominent mention of the VAWA in the first U.S. report to the Human Rights Committee serves not merely to evidence our continuing national commitment to human rights,(14) but also to underscore congressional and Executive resolve to avoid friction with the international community with respect to U.S. compliance with human rights treaty obligations.

      Bonnie J. Campbell, Director of the Violence Against Women Office of the U.S. Department of Justice, also confirmed that domestic violence is "now ... recognized as [a] violation of our human rights ..." and that the VAWA is an example of U.S. legislation designed to address human rights violations against women.(15) Indeed, one express purpose of the Civil Rights for Women Act, which is part of the VAWA, is "to protect the civil rights of victims of gender motivated violence ... by establishing a Federal civil rights cause of action for victims of crimes of violence motivated by gender,"(16) and there is express recognition that "[a]ll persons within the United States shall have the right to be free from crimes of violence motivated by gender."(17)

      In 1994, the Senate Foreign Relations Committee recommended that the Senate give advice and consent to ratification of the Convention on the Elimination of All Forms of Discrimination Against Women,(18) while noting that the treaty "requires broad regulation of private conduct, in particular under Articles 2, 3 and 5," and stating that the U.S. will not take "action with respect to private conduct except as mandated by the Constitution and laws of the United States."(19) Thus, the Senate Committee's report to the Senate contemplated U.S. legislation to implement certain treaty-based human rights protections against private conduct involving violence against women, and the VAWA had been enacted just three weeks earlier.

      The year prior to the enactment of the Violence Against Women Act was marked by significant recognition by various congresspersons of the human rights aspects of domestic violence against women. In their preview of the 103rd Congress, Senators Dole and Lott referred to "provisions regarding violence against women" in their "crime bill" and to "The Sexual Assault Prevention Act of 1993, which would also be introduced in the House by Congresswoman Susan Molinari, [and which] is a comprehensive response to violence against women, both on the streets, and in the home,"(20) while also decrying similar and additional human rights violations by Slobodan Milosevic in Bosnia.(21) Representative Christopher Smith affirmed the relationship between violent abuses of human rights and "violence against women (including rape and wife beating)" in Nicaragua.(22) Senator DeConcini also spoke of the need for "appointment of a special U.N. rapporteur on gender discrimination and violence against women and the strengthening of implementation procedures under the Convention for the Elimination of All Forms of Discrimination Against Women" as part of a "human rights agenda into the next century"(23) Senator Pell spoke of serious human rights violations in East Timor involving "discrimination and violence against women."(24) Senator Boxer spoke of human rights atrocities in Bosnia-Herzegovina "with a specific focus on acts of violence against women," adding: "As you know well, Madam President ... we are working together to stop the violence against women in this country and around the world...."(25)

      Later that year, Senator Pressler spoke of human rights violations in Africa, including "[v]iolence against women ... [i]n particular, wife beating ...;"(26) Representative Snowe introduced bills addressing "women's human rights," including "violence against women," and "special needs of refugee women and children;"(27) and Senator Pell stressed the need for the Human Rights Commission to "appoint a special rapporteur on violence against women ... [who] should investigate human rights violations including battering in the family, rape, female infanticide, `honor killings,' `dowry murder,' and other violence related to traditional and customary practices."(28) While addressing violent crime control, H.R. 4092 (which was termed the "Violent Crime...