Northwest Austin Municipal Utility Distr. One v. Holder Brief Amicus Curiae Howard University Civil Rights Clinic

    No. 08-322

IN  THE

m p x z x m  (Emxrt erf t\ \ t llrttiuit States

Northwest Austin Municipal Utility 
District Number One,

Appellant,

-v.-

Eric H. Holder, Jr., Attorney General of the 
United States of America, et al.,

Appellees.

o n  a p p e a l  fro m  th e  u n ite d  states  d is tr ic t  c o u r t
FOR THE DISTRICT OF COLUMBIA

BRIEF OF THE CIVIL RIGHTS CLINIC AT 
HOWARD UNIVERSITY SCHOOL OF LAW, 

AS AMICUS CURIAE, IN SUPPORT OF 
APPELLEES AND INTERVENOR-APPELLEES

Aderson Bellegarde Franqois 
Counsel o f Record 

Associate Professor of Law 
& Supervising Attorney of 
the Civil Rights Clinic 

Lisa A. Crooms 
Professor of Law 
Howard University School of Law 
2900 Van Ness Street N.W. 
Washington D.C. 20008 
(202) 806-8065



TABLE OF CONTENTS
PAGE

TABLE OF AUTHORITIES.............................  iv

STATEMENT OF INTEREST.........................  1

SUMMARY OF THE ARGUMENT................... 1

ARGUMENT...... ....................     4

I. THE INTERNATIONAL COVENANT 
ON CIVIL AND POLITICAL 
RIGHTS (ICCPR) AND THE 
INTERNATIONAL CONVENTION 
ON THE ELIMINATION OF ALL 
FORMS OF RACIAL DISCRIMINATION 
(ICERD) ARE PART OF THE 
SUPREME LAW OF THE LAND,
AND IMPOSE AN OBLIGATION 
UPON THE UNITED STATES TO 
PROTECT THE RIGHT OF CITIZENS 
TO VOTE FREE FROM RACIAL
DISCRIMINATION............................ 4

A. Treaties are Part of the
Supreme Law of the Land.........  4

B. ICCPR and ICERD are Part 
o f the Supreme Law of the 
Land And, as such, Impose 
an Obligation on the United 
States to Protect The Right 
of Citizens to Vote Free from 
Racial Discrimination................  6



ii

C. The Executive Branch Has 
Interpreted The Voting Rights 
Act, and its Pre-Clearance 
Provisions, as fulfilling in 
part our treaty obligations 
under ICCPR and ICERD.........

II. THE POLITICAL INTERPRETATION 
THAT OUR ICCPR AND 
ICERD OBLIGATIONS ARE 
FULFILLED IN PART BY THE 
VOTING RIGHTS ACT IS A 
LEGITIMATE BASIS UPON 
WHICH TO UPHOLD SECTION 5 
BECAUSE THE COURT HAS 
TRADITIONALLY ACCORDED 
GREAT DEFERENCE TO 
CONGRESS AND THE PRESIDENT 
ACTING INDEPENDENTLY 
OR IN CONCERT TO MAKE, 
IMPLEMENT, INTERPRET, OR 
ENFORCE TREATIES........ .............

A. The Court Has Traditionally
Deferred to the President’s 
Power to Make and Interpret 
Treaties.................................... .

B. The Court Has Similarly
Shown Great Deference to 
Congress’ Power to Implement 
and Interpret Treaties...............

PAGE

9

16

19

21



I l l

C. Deference to the Political 
Branches is Particularly Apt 
When the President and
Congress Act in Concert............ 23

D. The Political Interpretation 
that the Voting Rights Act 
Fulfills in part our ICCPR and 
CERD Obligations Deserves 
the Same Deference the Court 
has Traditionally Accorded
to Treaty Interpretation by the 
Political Branches.....................  26

III. IT IS FITTING THAT THE VOTING 
RIGHTS ACT SHOULD BE ONE OF 
THE BASES FOR MEETING OUR 
ICCPR AND CERD OBLIGATIONS 
BECAUSE OUR HOMEGROWN 
NOTIONS OF EQUALITY HAVE 
HISTORICALLY BEEN INSPIRED 
BY INTERNATIONAL HUMAN 
RIGHTS NORMS  ........................ 26

PAGE

CONCLUSION 34



IV

TABLE OF AUTHORITIES
PAGE

Cases:

B. Altman & Co. v. United States,
224 U.S. 583 (1912)............................ . 4

Baker v. Carr, 369 U.S. 186 (1962)................  22

Beazley v. Johnson, 242 F.3d 248
(5th Cir. 2001)............................. ............  22

Bentzon v. Boyle, 13 U.S. (9 Cranch)
191(1815)................................................  29

Brewster v. Gage, 280 U.S. 327 (1930).........  25

Charlton v. Kelly, 229 U.S. 447 (1913).........  19

Collins v. Weinberger, 707 F.2d 1518
(D.C. Cir. 1983)........................................  20

Cook v. United States, 288 U.S. 102 (1933)... 25

Dames & Moore v. Regan, 453 U.S. 654
(1981).................................... ..................  24

De Geofroy v. Riggs, 133 U.S. 258 (1890)....... 5

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

El Al Israel A irlines, Ltd. v.
Tsui Yuan Tseng, 525 U.S. 155
(1999)................................................ ..5, 18, 21

Factor v. Laubenheimer, 290 U.S. 276
(1933).........................  ............................ 19

Fellow v. Blacksmith, 60 U.S. 366 (1856).....  5, 17



V

Foster v. Neilson, 27 U.S. 253 (1829)........5, 12, 21

Hamdan v. Rumsfeld, 548 U.S. 557 (2006) ... 24

Hawkins v. Comparet-Cassani,
33 F. Supp. 2d 1244 (C.D. Cal. 1999) ...... 22

H einrich  v. Street, 49 F. Supp 2d 27
(D. Mass. 1999)........................................  22

Hoffmann-La Roche Inc. v. Sperling,
493 U.S. 165 (1989).................................  17

Igartua De La Rosa v. United States,
32 F.3d 8 (1st Cir. 1994)..................... 22

In  re E xtrad ition  o f Cheung,
968 F. Supp 791 (D. Conn. 1997).............  22

Iwonowa v. Ford M otor Co.,
67 F. Supp. 2d 424 (N.J. 1999).................  20

Johnson v. Eisentrager, 339 U.S. 763
(1993).......................................................  18

Kolovrat v. Oregon, 366 U.S. 187 (1961)......  17

Maiorano v. Baltim ore & O. R. Co.,
213 U.S. 268 (1909).................................  5

Marburg v. Madison, 5 U.S. 137 (1803).........  16

McCaughn v. Hershey Chocolate Co.,
283 U.S. 488 (1931).................................  25

Medellin v. Texas, 128 S. Ct. 1346 (2008).....  4, 12

Nagle v. L o i Hoa, 275 U.S. 475 (1928)........... 25

O’Connor v. United States, 479 U.S. 27
(1986)....................................................... 18

PAGE



VI

Osborn v. Bank o f the United States,
9 Wheat. 738 (1824).................................  17

Respublica v. De Longchamps,
1 U.S. (1 Dali.) I l l  (1784).................... 29

Rousseau v. Brown, 21 App. D.C. 73 (1903).. 23

Sanchez-Llamas v. Oregon, 548 U.S. 331
(2006).......................................................  5, 16

Sullivan v. Kidd, 254 U.S. 433 (1920).....  17, 18, 20

Sumitomo Shoji America, Inc. v.
Avagliano, 457 U.S. 176 (1982)............... 18, 20

Talbot v. Janson, 3 U.S. (3 Dali.) 133
(1795).......................................................  29

Talbot v. Seeman, 5 U.S. (1 Cranch) 1
(1801)......................................................  29

The Antelope, 23 U.S. (10 Wheat) 66 (1825) .. 29

The Nereide, 13 U.S. (9 Cranch) 388 (1815) .. 29

The Paquete Habana, 175 U.S. 677 (1900)__  30

The Scotia, 81 U.S. (14 Wall.) 170 (1871).....  29

Thirty Hogsheads o f Sugar v. Boyle,
13 U.S. (9 Cranch) 191 (1815).................  29

TransWorld A irlines, Inc. v.
Franklin  M in t Corp., 466 U.S. 243
(1984)......................................    25

United Shoe Machinery Co. v.
Duplessis Shoe Machinery Co.,
155 F. 842 (1st Cir. 1907).........    23

PAGE



United, States v. Arjona, 120 U.S. 479
(1887).....................................................   29

United States v. Belmont, 301 U.S. 324
(1937).......................................................  5

United States v. Curtiss-W right
Export Corp., 299 U.S. 304 (1936).....  18, 19, 24

United States v. Noriega, 808 F. Supp. 791
(S.D. FI. 1992).......................................... 20

United States v. Old Settlers, 148 U.S. 427
(1893)..............      17

United States v. Percheman, 32 U.S. 51
(1833).......................................................  21

United States v. Schooner Peggy,
5 U.S. 103 (1801)...................................... 5,16

Ware v. Hylton, 3 U.S. (3 Dali.) 199 (1796)... 29

Weinberger v. Rossi, 456 U.S. 25 (1982 )......  4

White v. Paulsen, 997 F. Supp. 1380
(E.D. Wash. 1998)....................................  22

Whitney v. Robertson, 124 U.S. 190 (1888)... 12, 23

Williams v. Taylor, 529 U.S. 362 (2000)....... 16

Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952).................................. 23

vii

PAGE



V lll

PAGE

Constitutional Provisions,
Statutes and Treaties:

U.S. Const, art. VI., cl. 2 ................................  5

Voting Rights Act o f 1965, 42 U.S.C.
§§ 1971, 1973-1973bb-l......................... passim

International Convention on the Elimination 
o f All Forms of Racial Discrimination, 
September 28, 1966, 660 U.N.T.S. 195 .... 6, 8

International Covenant on Civil and
Political Rights, December 16, 1966,
999 U.N.T.S. 171....................................  6, 7

S. Res. 4783, 102d Cong., 2d Sess. (1992).....  11

United Nations Documents:

Core document forming part of the reports 
o f states parties: United States,
U.N. Doc. HRI/Core/USA 2005 (2006)..... 10

Statement of Conrad Harper, Legal Advisor,
United States Department o f State, 
to the United Nations Human Rights 
Committee, U.N. GAOR Hum. Rts.
Comm., 53d Sess., 1405th mtg.,
U.N. Doc. HR/CT/404 (1995) ................... 12

U.N. CCPR, Consideration o f Reports 
Submitted by States Parties Under 
A rtic le  40 o f the Covenant, In it ia l 
Reports o f States Parties Due in  
1993, United States of America, 
CCPR/C/81/Add. 4 (1994) 12, 13



IX

U.N. CCPR, 53th Sess., 1401 mtg.,
U.N. Doc. CCPR/C/SR. 1401 (1994).........  15

U.N. CCPR, General Comment No. 25:
The right to 'participate in  public 
affairs, voting rights and the right 
to equal access to public service, 
art. 25, U.N. Doc. CCPR/C/21/Rev.l/
Add.7 (1996)............................................  7

U.N. CERD, Report o f the Committee 
on the E lim ina tion  o f Racial 
D iscrim ina tion : 51st Session of 
the General Assembly, Supplement 
No. 18, U.N. Doc. A/51/18 (1996)............  8

U.N. CERD, Reports Submitted by States

PAGE

Parties Under A rtic le  9 o f the 
Convention: Third period ic reports 
o f States parties due in  1999:
United States of America,
U.N. Doc. CERD/C/351/Add.l (2000 ).....  10, 12

U.N. CERD, 59th Sess., 1474 mtg.,
U.N. Doc. CERD/C/SR.1474 (2003).........  13

U.N. CERD, Reports Submitted by State 
Parties Under A rtic le  9 o f the 
Convention: Sixth period ic reports,
U.N. Doc. CERD/C/USA/6 (2007)............  15



X

U.N. CERD, Seventy-second session 
Geneva: Questions Put By the 
Rapporteur in  Connection with 
the Consideration o f the Combined 
Fourth, F ifth  and Sixth Period ic  
Reports o f the United States o f 
Am erica, U.N. Doc. CERD/C/USA/6 
(2008)............................................ ..........

U.N. CERD, Written Replies to the Questions 
Put By the Rapporteur in  Connection 
with the Consideration o f the 
Combined Fourth, F ifth  and Sixth  
Period ic Reports o f the United States 
of America, U.N. Doc. CERD/C/USA/6 
(2008).......................................................

U.N. CERD, Consideration o f Reports 
Submitted by States Parties 
Under A rtic le  9 o f the Convention: 
Concluding observations o f the 
CERD Committee, U.N. Doc. CERD/C/ 
USA/CO/6 (2008).....................................

Electronic Sources:

Library o f Congress, Thomas, Treaties,
Treaty Number: 95-20, In ternational 
Covenant on C iv il and P o litica l 
Rights -  Legislative A ction s .................

Library o f Congress, Thomas, Treaties,
Treaty Number: 95-20, In ternational 
Covenant on C iv il and P o litica l 
Rights -  Legislative H is to ry .................

PAGE

11

14

15

11

6



XI

Library o f Congress, Thomas, Treaties,
Treaty Number: 95-18, International 
Convention on the E lim ina tion  o f 
A ll Forms o f Racial D iscrim ina tion  -  
Legislative H is to ry ................................  6

Library o f Congress, Thomas, Treaties,
Treaty Number: 95-18, International 
Convention on the E lim ina tion  o f 
All Forms of Racial D iscrim ina tion  -  
Legislative A c tio n s ................................  11

Legal Periodicals Authorities:

PAGE

William Blackstone, Review of
W. Blackstone: Commentaries,
25 Am. Jour. Leg. Hist. 74 (1981)............  28

David P. Currie, Positive and Negative 
Constitutional Rights,
53 U. Chi. L. Rev. 864 (1986)....................... 28

Thomas C. Grey, Do We Have An 
Unwritten Constitution?,
27 Stan. L. Rev. 703 (1975) .....................  27

James Jennings, The International
Convention on the E lim ina tion  of 
All Forms of Racial D iscrim ina tion  
(CERD ): The International Convention 
on the E lim ina tion  o f A ll Forms o f 
Racial D iscrim ination : Im plications  
f o r  Challeiiging Racial Hierarchy,
40 How. L.J. 597 (1997) ........................... 33



xii

PAGE

Nelson Lund, Rousseau and 
D irect Democracy,
13 J. Contemp. Legal Issues (2004)........  27

Thurgood Marshall, Reflections on 
the B icentennial o f the 
United States Constitution,
101 Harvard L. Rev. 1 (1987)................... 2

Jenny S. Martinez, Antislavery Courts 
and the Dawn o f In ternational 
Human Rights Law 117 Yale L.J. 550 
(2008)....................................... ..............  4

Gay J. McDougall, The In ternational 
Convention on the E lim in a tion  o f 
All Forms o f Racial D iscrim in a tion  
(C ERD ): In troduction : Toward a 
Meaningful In ternational Regime: 
The Domestic Relevance o f 
In ternational Efforts to E lim ina te  
All Forms o f Racial D iscrim ina tion ,
40 How. L.J. 571 (1997)..........................  33

Ellen Frankel Paul, Freedom o f Contract 
and the “P o litica l Econom y” of 
Lochner v. New York, 1 N.Y.U. J. L.
& Liberty 515 (2005)................................  28

Dorothy Q. Thomas, Advancing Rights 
Protection  in  the United States: 
An Internationalized Advocacy 
Strategy, 9 Harv. Hum. Rts. J. 15
(1996).......................................................  33

Tim Wu, Treaties' Domains, 93 Va. L.R. 571
(2007).......................................................  18



X lll

Books:

Carol Anderson, Eyes o ff the Prize: the 
United Nations and the A frican  
Am erican Struggle fo r  Human 
Rights, 1944-1956 (2003)....................... 31

David Brion Davis, The Emergence o f 
Im m ediatism  in  British  and 
Am erican Antislavery Thought 
(1975)....................................................... 30

Susan M. Glisson, The Human Tradition  
in  the C iv il Rights Movement 
( Human Condition in  America)
(2006).......................................................  31

Immanuel Kant, Po litica l Writings
(Hans Reiss ed. & H. B. Nisbet trans., 
Cambridge Univ. Press, 1991) (1793).....  27

Ruth A. Ketrin, Charles Osborn in  the
Anti-Slavery Movement (1937).............  30

Azza Salama Layton, International 
Po litics  and C iv il Rights Policies  
in  the United States 1941-1960 
(2000)....................................................... 32

John Locke, Two Treatises o f Government 
(P. Laslett ed. Cambridge University 
Press, 1988) (1690).................................  27

Alasdair MacIntyre, After Virtue 
(2d ed., 1984)

PAGE

27



XIV

John Stuart Mill, On Liberty
(John Gray ed. Oxford Univ. Press,
1991) (1859)............................................  27

Robert C. Morris, Reading, ‘R iting,
and Reconstruction: The Education  
o f Freedmen in  the South 1861-1870 
(1981).......................................................  31

Thomas L. Pangle, The S p ir it o f Modern 
Republicanism: The Moral Vision 
o f the Am erican Founders and the 
Philosophy o f Locke (1988)....................  28

William L. Patterson, We Charge Genocide:
The Crime o f Government Against
the Negro People (1970).......................... 32

Jean-Jacques Rousseau, Discours
sur I ’economie politique  in Ouevres 
Completes (Bernard Gagnebin &
Marcel Raymond eds., 1964) (1775)....... 27

Miscellaneous:

Herbert Aptheker, The Quakers and 
Negro Slavery in The Journal of 
Negro History, Volume 25, 1940 .............. 30

Thomas Jefferson, The Declaration o f
Independence (1776)........................   27

Eleanor Roosevelt, On the Adoption of 
the Universal Declaration of Human 
Rights (December 9, 1948)......    32

Malcolm X, The Leverett House Forum
of March 18, 1964....................................  33

PAGE



XV

Unknown, This Country Our Only Home 
(May 9, 1840) in The Journal of 
Negro History, Volume 4, 1919..........

PAGE

30



STATEMENT OF INTEREST

A m ici curiae are faculty members at Howard Uni­
versity School o f Law and the Supervising Attorney 
and Student Attorneys of the Civil Rights Clinic at 
the Law School.1 We submit this brief in support of 
the Appellees and Intervenor-Appellees in order to 
respectfully urge this Honorable Court to uphold the 
decision of the LTnited States District Court for the 
District of Columbia.

For one hundred and forty years, through the 
work of such former and current deans and profes­
sors as C. Clyde Ferguson, Jr., James M. Nabrit, 
Goler Teal Butcher, Lisa A. Crooms, Marsha A. 
Echols, and Ziyad Motala, among others, Howard 
University School o f Law has long placed the strug­
gle for racial equality in the United States in the 
broader context of international human rights 
norms. It is in the spirit of that tradition that A m ici 
respectfully submits that the District Court’s deci­
sion should be upheld because Section 5 of the Vot­
ing Rights Act represents a partial fulfillment of 
United States treaty obligations under the Interna­
tional Convention on the Elimination of All Forms of 
Racial Discrimination (ICERD) and the International 
Covenant on Civil and Political Rights (ICCPR).

SUMMARY OF ARGUMENT

On September 28, 1966, and October 5, 1977, 
respectively, the United States signed the Interna-

1 Counsel o f record for all parties received notice at least 
10 days prior to the due date o f Amicus Curiae's intention to file 
this brief. A ll parties have provided consent. No counsel for a 
party authored this brie f in whole or in part, and no counsel or 
party made a monetary contribution intended to fund the prepa­
ration o f the brief.



2

tional Convention on the Elimination of All Forms of 
Racial Discrimination (ICERD) and the International 
Covenant on Civil and Political Rights (ICCPR). 
Nearly twenty years following our signature o f the 
ICERD, the Senate ratified both treaties, first the 
ICCPR in 1992, and then the ICERD in 1994. As a 
party to two of the most important human rights 
documents of the last century, we renewed before 
the community o f nations a promise we had origi­
nally made to ourselves at our constitutional found­
ing, and had tried to keep—often faithfully but 
sometimes only fitfully—through one civil war, sev­
eral constitutional amendments, and still ongoing 
social movements: that all human beings, regardless 
of race, sex, religion or national origin, are equal 
before the law and are entitled to certain funda­
mental civil and political rights.

Signing and ratifying these two treaties was not a 
mere symbolic gesture to celebrate that which we 
had already achieved. Rather, it was both an implicit 
concession to the unfinished business of fixing what 
Justice Thurgood Marshall called “the Constitution’s 
inherent defects,”2 as well as a fitting acknowledg­
ment of the international roots o f the American con­
cept o f human equality. Thus, when Congress 
initially enacted the Voting Rights Act in 1965, and 
when it reauthorized the Act’s pre-clearance provi­
sions in 2006, those legislative actions fulfilled in 
part our treaty obligations under ICERD and ICCPR 
to protect the rights of all citizens to vote free from 
racial discrimination.

Indeed, since legislative passage and reautho­
rization of the Act, the Executive Branch has

2 Thurgood Marshall, Reflections on the Bicentennial of 
the United States Constitution, 101 Harvard L. Rev. 1 (1987).



3

unequivocally held up the Voting Rights Act to the 
international community as evidence of our fulfill­
ment of ICERD and ICCPR obligations. This Court 
has a long tradition of according great deference to 
the interpretation of treaties by the political branches 
based on the Court’s recognition that it is in the coun­
try’s best interest to have the government speak with 
one voice when dealing with other nations, as well as 
the Court’s respect for the particular expertise of 
those government agencies charged with adminis­
tering treaties. The present political interpretation of 
the Voting Rights Act as the fulfillment of our treaty 
obligations deserves no less a degree of deference 
and no less a measure of respect.

To submit that among the bases, upon which the 
Court ought to uphold Section 5 of the Voting Rights 
Act of 1965, are our commitments to international 
treaties is not to engage in an academic meditation 
over the proper role of foreign sources o f law in 
domestic precedent. It is merely to make two points: 
first, ratified treaties such as ICERD and ICCPR are 
not foreign sources of law but rather the supreme law 
of the land, no different from and not inferior to con­
stitutional enactments and federal statutes; and sec­
ond, whether judged from the founders grounding our 
political philosophy in the works of European enlight­
enment thinkers, the abolitionists modeling their anti­
slavery appeals on the British abolition movement, or 
post World War II civil rights activists framing their 
challenge to Jim Crow segregation as part of the larger 
anti-colonial struggle of peoples of color in Africa, 
Asia, and the West Indies, our homegrown notions of 
liberty and equality have always been from the first 
and remain to this day deeply inspired by, inextricably 
intertwined with, and fundamentally inseparable from 
international norms of human freedom and justice.



4

ARGUMENT

I.

THE INTERNATIONAL COVENANT ON 
CIVIL AND POLITICAL RIGHTS (ICCPR ) 

AND THE INTERNATIONAL CONVENTION  
ON THE ELIMINATION OF ALL FORMS 
OF RACIAL DISCRIMINATION (ICERD) 
ARE PART OF THE SUPREME LAW OF 

THE LAND, AND IMPOSE AN OBLIGATION  
UPON THE UNITED STATES TO PROTECT 
THE RIGHT OF CITIZENS TO VOTE FREE 

FROM RACIAL DISCRIMINATION

A. Treaties are Part of the Supreme Law of  
the Land

A treaty is “a compact made between two or more 
independent nations, with a view to the public wel­
fare.” B. Altman & Co. v. United States, 224 U.S. 
583, 600 (1912).3 As a solemn expression of national 
commitment, a treaty “depends for the enforcement 
of its provisions on the interest and the honor o f the 
governments which are parties to it.” Edye v. 
Robertson, 112 U.S. 580, 598 (1884). Though scholars 
have long advanced customary international law as 
a legitimate basis for abiding by treaty commit­
ments4, American treaty obligations are firmly

3 See also Medellin v. Texas, 128 S. Ct. 1346, 1357 (2008) 
( “A  treaty is, o f course, ‘primarily a compact between indepen­
dent nations.”); Edye v. Robertson, 112 U.S. 580, 598 (1884) ( “A 
treaty is primarily a compact between independent nations.”); 
Weinberger v. Rossi, 456 U.S. 25, 29 (1982) ( “Under principles o f 
international law, the word [treaty] ordinarily refers to an inter­
national agreement concluded between sovereigns.”)

4 Jenny S. Martinez, Antislavery Courts and the Dawn of 
International Human Rights Law 117 Yale L.J. 550 (2008).



5

rooted in our own constitutional text and jurispru­
dential precedent. Article VI, Clause 2 provides that, 
along with federal constitutional provisions and fed­
eral statutes, “all treaties made, or which shall be 
made, under the authority of the United States, shall 
be the supreme law of the land.” In terms of prece­
dent, since the jurisprudential version of time 
immemorial, this Court has recognized that treaties 
are not a lesser species of federal law,5 and that, 
“ [u]nder the Supremacy Clause [of the United States 
Constitution,] a treaty is ‘to be regarded in courts of 
justice as equivalent to an act of the legislature, 
whenever it operates of itself without the aid of any 
legislative provision.’ ” Sanchez-Llamas v. Oregon, 
548 U.S. 331, 373 (2006) (quoting Foster v. Neilson, 
27 U.S. 253 (1829)).

5 See Ware v. Hylton, 3 U.S. 199, 236 (1796) (holding that 
treaties made by the authority o f the United States are superior 
to the Constitution and laws o f individual States); United States 
v. Schooner Peggy, 5 U.S. 103, 109 (1801) (holding that a treaty, 
affecting the rights o f parties litigating in court is to be regarded 
by the court as an act o f Congress); Fellow v. Blacksmith, 60 
U.S. 366, 372 (1857) (holding that courts are prohibited from 
using tactics that would work to annul a treaty’s effect and pur­
pose in the same manner as they are prohibited concerning acts 
o f Congress); De Geofroy v. Riggs, 133 U.S. 258, 266 (1890) 
(holding that the treaty power is unlimited except for those spe­
cific restrictions found within the Constitution); Maiorano v. 
Baltimore & O. R. Co., 213 U.S. 268, 272-73 (1909) (holding that 
courts are under an obligation to enforce treaties in litigation 
involving private rights); United States v. Belmont, 301 U.S. 324, 
330 (1937) (holding that governmental power over external 
affairs is vested exclusively in the national government and such 
powers should be exercised without regard to state laws or poli­
cies); El Al Israel A irlines, Ltd. v. Tseng, 525 U.S. 155, 181 
(1999) (holding that state laws regarding tort liability are unen­
forceable if they undermine the purpose o f the treaty).



6

B. ICCPR  and ICERD are Part of the 
Supreme Law of the Land And, as such, 
Impose an Obligation on the United States 
to Protect The Right of Citizens to Vote 
Free from Racial Discrimination

The United Nations adopted the International 
Convention on the Elimination of All Forms of 
Racial Discrimination (ICERD) and the International 
Covenant on Civil and Political Rights (ICCPR) in 
the 1960s.6 Approximately one year after the passage 
of the Voting Rights Act of 1965, the United States 
signed the ICERD. Eleven years later, the United 
States signed the ICCPR.7 The Senate provided the 
advice and consent for ratification of the ICCPR in 
1992 and the ICERD in 1994. Since their ratification, 
the United States has filed periodic reports with and 
appeared before the Human Rights Committee and 
the Committee on the Elimination of Racial Dis­
crimination to elaborate on US compliance with its 
treaty obligations.

The ICCPR envisions that a state party will 
respect individuals within its territory “without dis-

° International Convention on the Elimination o f All 
Forms o f Racial Discrimination, September 28, 1966, 660 
U.N.T.S. 195 [hereinafter ICERD or the Race Convention]; and 
the International Covenant on Civil and Political Rights, Decem­
ber 16, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR],

' Library o f Congress, Thomas, Treaties, Treaty Number: 
95-18, International Convention on the E lim in a tion  o f A ll 
Forms o f Racial D iscrim ination—Legislative History, avail­
able at http://thomas.loc.gov/cgi-bin/ntquery/D7trtys:l:./temp/ 
~trtysnOKqw8:: (last visited Mar. 22, 2009); Library o f Congress, 
Thomas, Treaties, Treaty Number: 95-20, International 
Covenant on C iv il and Politica l Rights—Legislative History, 
available at http://thomas.loc.gov/cgi-bin/ntquery/D7trtys: 1:./ 
temp/~trtysMtlFkl:: (last visited Mar. 22, 2009).

http://thomas.loc.gov/cgi-bin/ntquery/D7trtys:l:./temp/
http://thomas.loc.gov/cgi-bin/ntquery/D7trtys


7

tinction of any kind, such as race, colour, sex, lan­
guage, religion, political or other opinion, national 
or social origin, property, birth or other status.” 
ICCPR, art. 2, December 16, 1966, 999 U.N.T.S. 171. 
Specifically, the ICCPR states:

Every citizen shall have the right and the oppor­
tunity, without any of the distinctions men­
tioned in article 2 and without unreasonable 
restrictions: [. . .] (b) To vote and to be elected 
at genuine periodic elections which shall be by 
universal and equal suffrage and shall be held 
by secret ballot, guaranteeing the free expres­
sion of the will o f the electorsf.]8

ICCPR, art. 25, December 16, 1966, 999 U.N.T.S. 171.

The Human Rights Committee (HRC) is the body 
responsible for monitoring implementation of the 
ICCPR. According to the HRC, Article 25 of the 
ICCPR “lies at the core of democratic government 
based on the consent of the people and in confor­
mity with the principles of the Covenant.”9 This arti­
cle “requires States to adopt such legislative and 
other measures as may be necessary to ensure that

8 Article 2 requires that each State that is a party to the 
treaty must undertake “to respect and to ensure to all individuals 
within its territory and subject to its jurisdiction the rights rec­
ognized in the present Covenant, without distinction o f any kind, 
such as race, colour, sex, language, religion, political or other 
opinion, national or social origin, property, birth or other sta­
tus.” ICCPR, art. 2, December 16, 1966, 999 U.N.T.S. 171.

9 U.N. CCPR, General Comment No. 25: The right to par­
ticipate in  public affairs, voting rights and the right to equal 
access to public service, art. 25, U.N.Doc. CCPR/C/21/Rev. 
1/Add. 4 1 1 (1994). available at http://www.unhchr.ch/tbs/ 
doc.nsf/(Symbol)/d0b7f023e8d6d9898025651e004bc0eb?Open- 
document.

http://www.unhchr.ch/tbs/


8

citizens have an effective opportunity to enjoy the 
rights it protects,” which includes the right to vote.10 
The right to vote cannot “be suspended or excluded 
except on grounds which are established by law and 
which are objective and reasonable.”11 The use of 
race to deprive citizens of their voting rights is nei­
ther objective nor reasonable.

The ICERD is founded on the principle that “all 
human beings are equal before the law and are enti­
tled to equal protection of the law against any dis­
crimination” and that “the existence o f racial 
barriers is repugnant to the ideals of any human 
society.” See Convention on the Elimination of 
Racial Discrimination, September 28, 1966, 660 
U.N.T.S. 195. Specifically, the ICERD requires that:

State parties. . . prohibit and. . .eliminate 
racial discrimination in all its forms and to guar­
antee the right of everyone, without distinction 
as to race, color, or national or ethnic origin, to 
equality before the law, notably in the enjoy­
ment of [. . .] [political rights, in particular the 
right to participate in elections-to vote and to 
stand for election-on the basis of universal and 
equal suffrage[.]

ICERD, art. 5(c), September 28, 1966, 660 U.N.T.S. 
195 [hereinafter ICERD Article 5].

Article 5 o f the ICERD “obligates. . .States Par­
ties to guarantee the enjoyment of civil, political, 
economic, social and cultural rights and freedoms 
without racial discrimination.”12 As the Committee

10 Id.

11 Id. at H 4.

12 U.N. CERD, Report o f the Committee on the E lim in a ­
tion o f Racial D iscrim ina tion : 51st Session o f the General



9

on the Elimination of Racial Discrimination has 
noted, “ [a]t the head of these rights and freedoms 
are those deriving from the Charter of the United 
Nations and the Universal Declaration of Human 
Rights,” most o f which “have been elaborated in the 
International Covenants on Human Rights,”13 such as 
the ICCPR. While “ [a]ll States Parties are. . .obliged 
to acknowledge and protect the enjoyment of human 
rights, . . .the manner in which these obligations 
are translated into the legal orders of States Parties 
may differ.”14 The Committee on the Elimination of 
Discrimination further notes that “Article 5. . .apart 
from requiring a guarantee that the exercise of 
human rights shall be free from racial discrimina­
tion, does not of itself create civil, political, eco­
nomic, social or cultural rights, but assumes the 
existence and recognition of these rights. The Con­
vention obliges States to prohibit and eliminate 
racial discrimination in the enjoyment of such 
human rights.”15

C The Executive Branch Has Interpreted The 
Voting Rights Act, and its Pre-Clearance 
Provisions, As fulfilling in part our treaty 
obligations under ICCPR and ICERD

In light of the fact that the United States has 
signed and ratified both the ICCPR and the ICERD, 
it has an obligation to protect all citizens’ right to 
vote, especially those whose rights might be irnper-

Assembly, Supplement No. 18, U.N. Doc. A/51/18, p. 124 1) 1 
(1996), see http://daccessdds.un.org/doc/UNDOC/GEN/N96/257/ 
38/PDF/N9625738.pdf?OpenElement.

13 Id.

14 Id.
15 Id.

http://daccessdds.un.org/doc/UNDOC/GEN/N96/257/


10

iled because of racial discrimination. The Executive 
Branch has admitted as much in both the documents 
it has filed with the United Nations Committees 
overseeing implementation status o f ICCPR and 
ICCPR, Human Rights Committee and the Commit­
tee on the Elimination of Racial Discrimination, and 
its testimony before these two treaty-bodies. The 
core document filed with the United Nations by the 
Executive Branch identified the Voting Rights Act of 
1965 as supplementing “the constitutional protection 
afforded by the Equal Protection Clause of the Four­
teenth Amendment against discrimination by the 
state governments on the basis o f race, color, or 
national origin.”16 The initial periodic report filed 
with the Committee on the Elimination of Racial 
Discrimination described the Voting Rights Act as 
including “specialized mechanisms that apply to 
areas of the country with the most severe history of 
discrimination against Blacks.”17 The report con­
tinued, “ [t]his part o f the Act requires federal pre­
approval for any proposed changes in voting laws 
and practices to prevent the implementation of new 
discriminatory laws.”18 In addition, as part o f the 
February 2008 hearing before the Committee on the 
Elimination of Racial Discrimination, high-level 
members of the Executive Branch characterized the 
Voting Rights Act as “one of the most effective civil

16 Core document forming part o f the reports o f states par­
ties: United States, U.N. Doc. HRI/Core/USA 200-5 (16 January 
2006) at H 133.

U.N. CERD, Reports Submitted by States Parties Under 
A rticle  9 o f the Convention: Third period ic reports o f States 
parties due in  1999: Addendum: United States o f America, U.N.
Doc. CERD/C/351/Add. 1 (10 October 2000) at <n 95.

18 Id.



11

rights statutes ever enacted by Congress,”19 further 
contending that United States’ treaty obligations 
have been met by, in ter alia, the Voting Rights Act 
o f 1965 and its subsequent reauthorizations.

Admittedly, when the United States initially signed 
and subsequently ratified the ICERD and the ICCPR, 
we did so subject to the declaration that neither 
treaty was self executing.20 Thus, the ICERD decla­
ration specifically states “that the provisions of the 
Convention are not self-executing.”21 Id. Likewise, 
Senate consent to the ICCPR was accompanied by a 
declaration “that the provisions of Articles 1 through 
27 are not self executing.” Id. S. Res. 4783, 102d 
Cong., 2d Sess. (1992).22

19 U.N. CERD, Seventy-second session Geneva, 18 Febru­
ary-? March 2008, Questions Pu t By the Rapporteur in  Con­
nection with the Consideration o f the Com bined Fourth, F ifth  
and Sixth Period ic Reports o f the United States of Am erica, 
U.N. Doc. CERD/C/USA/6 (2008) at p. 14.

20 Library o f Congress, Thomas, Treaties, Treaty Number: 
95-18, International Convention on the E lim ination  o f A ll 
Forms o f Racial D iscrim ination—Legislative Actions, avail­
able at http://thomas.loc.gOv/cgi-bin/ntquery/D7trtys:l:./temp/ 
-trtysowwrRK:: (last visited Mar. 10, 2009); Library o f Congress, 
Thomas, Treaties, Treaty Number: 95-20, International 
Covenant on C iv il and Po litica l Rights—Legislative Actions, 
available at http://thomas.loc.gov/cgi-bin/ntquery/D7trtys: 1:./ 
temp/~trtys7StCnV:: (last visited Mar. 10, 2009).

21 The specific declaration adopted by the Senate at the 
time it ratified the ICERD reads as follows: “the United States 
declares that the provisions o f the Convention are not self­
executing.” http://treaties.un. org/Pages/ViewDetails.aspx?src= 
TREATY&id=319&chapter=4&lang=en#EndDec (last visited 
March 2, 2009).

22 These declarations were among the Reservations, Dec­
larations and Understandings filed with the appropriate treaty-

http://thomas.loc.gOv/cgi-bin/ntquery/D7trtys:l:./temp/
http://thomas.loc.gov/cgi-bin/ntquery/D7trtys
http://treaties.un


12

As interpreted by the Executive Branch, these 
declarations prohibit “only a private and indepen­
dent cause of action,” unless Congress enacts leg­
islation that grants individuals a justiciable cause of 
action as a matter o f U.S. law.” See Statement of 
Conrad Harper, Legal Advisor, United States Depart­
ment o f State, to the United Nations Human Rights 
Committee, U.N. GAOR Hum. Rts. Comm., 53d Sess., 
1405th mtg., U.N. Doc. HR/CT/404 (1995).23 These 
declarations, however, do not affect the obligations 
of the United States under either the ICERD or the 
ICCPR. See Foster v. Neilson, 27 U.S. 253, 314-15 
(182 9).24

body when the ICCPR and the ICERD were finally ratified in 
1992 and 1994, respectively. Id.

23 This Court recently reiterated this principle, stating that 
“a ‘non-self executing’ treaty does not by itself give rise to 
domestically enforceable federal law.” Medellin v. Texas, 128 
S.Ct. 1346, 1356 (2008); see also Whitney v. Robertson, 124 U.S. 
190, 194 (1888) ( “When the [treaty] stipulations are not self-exe­
cuting, they can only be enforced pursuant to legislation to carry 
them into effect, and such legislation is as much subject to mod­
ification and repeal by congress as legislation upon any other 
subject”).

24 See U.N. CERD, Reports Submitted by States Parties 
Under A rtic le  9 o f the Convention, Third period ic reports o f 
States parties due in  1999: United States o f America, n 170, U.N. 
Doc. CERD/C/351/Add.l, 10 October 2000 (The non-self-exe­
cuting “declaration has no effect on the international obligations 
o f the United States or on its relations with States parties.”) 
http://www.state.gov/documents/organization/100306.pdf; U.N. 
CCPR, Consideration o f Reports Submitted by States Parties 
Under Article 40 of the Covenant, In itia l Reports o f States Par­
ties Due in  1993 Addendum, United States o f America, 1)8, U.N. 
Doc. CCPR/C/81/Add. 4 (24 August 1994). (The non-self-exe­
cuting “declaration did not limit the international obligations o f 
the United States under the Covenant.”) http://daccessdds.un.org/ 
doc/UNDOC/GEN/G94/187/90/PDF/G9418790.pdf?OpenElement;)

http://www.state.gov/documents/organization/100306.pdf
http://daccessdds.un.org/


13

In fact, in each periodic report the United States 
has filed and defended since ratifying both the 
ICCPR and the ICERD, the Executive Branch has 
reported that its treaty obligations to protect voting 
rights are enforced through, in te r alia, the Voting 
Rights Act o f 1965. The State Department, charged 
with the duty to report to the appropriate committee 
about domestic efforts to implement the ICCPR and 
the ICERD, has contended that the Voting Rights Act 
o f 1965 and the corresponding Fannie Lou Hamer, 
Rosa Parks and Coretta Scott King Voting Rights 
Reauthorization and Amendments Act of 2006 are 
constitutionally valid measures that make enforce­
able the voting rights provisions found in the ICERD 
and the ICCPR. While reviewing the federal laws to 
ensure compliance with its treaty obligations, the 
State Department reported that: “In 1965, Congress 
had passed the Voting Rights Act, which prohibited 
discrimination by public officials in the voting pro­
cess. [The Voting Rights Act] accelerated the par­
ticipation of African-Americans in the political and 
electoral process, particularly in the South.” U.N. 
CERD, 59th Sess., 1474 mtg. at H 12, U.N. Doc. 
CERD/C/SR.1474 (May 22, 2003). The State Depart­
ment explained that Section 2 o f the Voting Rights 
Act protects people from discrimination to the right 
to vote since the right “may be enforced by a private 
suit to vindicate denials of the Fifteenth Amendment 
rights, i.e. intentional denials or limitations on the 
right to vote or to exercise an effective vote.” U.N. 
CCPR, Reports Submitted by State Parties Under 
Article  40 o f the Covenant: F irst periodic reports, 
H 98, U.N. Doc. CCPR /C/81/Add.4 (August 24, 1994).

Furthermore, in a 2008 report, the State Depart­
ment specified that Section 5 o f the Voting Rights 
Act protects its citizens from racial discrimination:



14

Section 5 o f the Voting Rights Act freezes 
changes in election practices or procedures in 
certain states until the new procedures have 
been determined not to have a discriminatory 
purpose or effect either by a special federal 
court panel or the Attorney General of the 
United States. This requires proof that the pro­
posed voting change does not deny or abridge 
the right to vote on account o f race, color, or 
membership in a language minority group. If the 
jurisdiction is unable to prove that the proposed 
change is free o f a discriminatory purpose or 
effect, the federal court will deny the requested 
judgment, or in the case o f administrative sub­
missions, the Attorney General will object to the 
change, and it remains legally unenforceable.

See U.N. High Commissioner for Human Rights, 
Committee on the Elimination of Racial Discrimi­
nation, Written Replies to the Questions Put By the 
Rapporteur in  Connection with the Consideration 
of the Combined Fourth, F ifth  and Sixth Periodic 
Reports o f the United States o f America, Answer to 
Question 4, p. 16, U.N. Doc. CERD/C/USA/6 (March 
7, 2008). In sum, according to our own State Depart­
ment, which represents the views of the President, 
the pre-clearance requirement of Section 5 functions 
to enforce the United States’ obligation to secure 
the right to vote under both the ICERD and the 
ICCPR.

The United Nations views the United States’ 
implementation of the Voting Rights Act as fulfilling 
its treaty obligations and giving force to the ICERD 
and the ICCPR. During its first appearance before 
the Human Rights Committee to assess United 
States compliance with the ICCPR, the Human



15

Rights Committee remarked on the importance of 
the Voting Rights Act within the United States. 
According to the Committee,

[t]he right to vote, enshrined in articles 25 and 
27 of the [ICCPR], was at the core of American 
democracy. The Fifteenth Amendment to the 
Constitution prohibited the denial o f voting 
rights on account o f race, colour or previous 
condition of servitude and the Voting Rights Act 
of 1965 and its amendments authorized the Civil 
Rights Division and private parties to file law­
suits in cases of violation. The Act also banned 
literacy tests and other devices used to dis­
qualify minority voters. The Civil Rights Divi­
sion accorded top priority to ensuring that all 
Americans enjoyed the right to vote.

See U.N. CCPR, 53th Sess., 1401 mtg. at H 21, U.N. 
Doc. CCPR/C/SR.1401 (April 17, 1994). Recently, in 
a 2007 report to the United Nations, the Executive 
Branch announced that, in July 2006, Congress reau­
thorized the Voting Rights Act for 25 years, which 
includes an extension of the pre-clearance require­
ment in Section 5. See U.N. CERD, Reports Sub­
mitted by State Parties Under A rtic le  9 o f the 
Convention: Sixth periodic reports, H 199, U.N. Doc. 
CERD/C/USA/6 (May 1, 2007); see also U.N. CERD, 
Consideration o f Reports Submitted by Sta tes Par­
ties Under Article 9 of the Convention: Concluding 
observations o f the CERD Committee, H 2, U.N. Doc. 
CERD/C/USA/CO/6 (May 8, 2008).



16

II

THE POLITICAL INTERPRETATION THAT 
OUR ICCPR AND ICERD OBLIGATIONS 

ARE FULFILLED IN PART BY THE 
VOTING RIGHTS ACT IS A LEGITIMATE  

BASIS UPON WHICH TO UPHOLD 
SECTION 5 BECAUSE THE COURT HAS 
TRADITIONALLY ACCORDED GREAT 

DEFERENCE TO CONGRESS AND THE 
PRESIDENT ACTING INDEPENDENTLY  

OR IN CONCERT TO MAKE, IMPLEMENT, 
INTERPRET, OR ENFORCE TREATIES

Because treaties, like constitutional provisions 
and federal statutes, stand as supreme federal law, 
their interpretation ultimately rests with the Court. 
See United States v. Schooner Peggy, 5 U.S. 103, 109 
(1801). Over two hundred years ago, Justice Mar­
shall made it clear that the judicial power vested in 
the United States Supreme Court “extends to. . . 
treaties. . . .” Id. As recently as three years ago, the 
current Court maintained “if treaties are to be given 
effect as federal law under our legal system, deter­
mining their meaning as a matter of federal law ‘is 
emphatically the province and duty of the judicial 
department,’ headed by the ‘one supreme Court.’ ” 
Sanchez-Llamas v. Oregon, 548 U.S. 331, 353-54 
(2006) (quoting Marbury v. Madison, 5 U.S. 137, 177 
(1803)); Williams v. Taylor, 529 U.S. 362, 378-79 
(2000) (opinion of Stevens, J.) ( “At the core o f [the 
judicial] power is the federal courts’ independent 
responsibility— independent from its coequal 
branches in the Federal Government, and indepen­
dent from the separate authority of the several 
States—to interpret federal law”); Hoffmann-



17

La Roche Inc. v. Sperling, 493 U.S. 165, 175 (1989), 
citing  Osborn v. Bank o f the United, States, 
9 Wheat. 738, 819 (1824) (where a “case or contro­
versy” exists, ( “ [Art. Ill, § 2, cl. 1] enables the judi­
cial department to receive jurisdiction to the full 
extent of the constitution, laws, and treaties of the 
United States, when any question respecting them 
shall assume such a form that the judicial power is 
capable of acting on it.”).

However, the fact that juridical power extends 
over treaties does not mean that courts may “go 
behind [a properly executed and ratified treaty] for 
the purpose of annulling its effect and operation, 
than they can behind an act of Congress.” Fellows v. 
Blacksmith, 60 U.S. 366, 372 (1856); see also United 
States v. Old Settlers, 148 U.S. 427, 466 (1893) (hold­
ing that the Court may not declare a treaty inoper­
ative on grounds of fraud or duress because 
partaking in such deliberations goes behind a treaty 
and is “not within the province of a court.”). Rather, 
when exercising its power to determine the inter­
pretation of treaties, the Court has traditionally 
accorded great deference to the political branches, 
explaining that “ [w]hile courts interpret treaties for 
themselves, the meaning given them by the depart­
ments of government particularly charged with their 
negotiation and enforcement is given great weight.” 
Kolovrat v. Oregon, 366 U.S. 187, 194 (1961).25

25 See also Sullivan v. Kidd, 254 U.S. 433, 442 (1921) ( “While 
the question of the construction o f treaties is judicial in its nature, 
and courts when called upon to act should be careful to see that 
international engagements are faithfully kept and observed, the 
construction placed upon the treaty before us and consistently 
adhered to by the Executive Department o f the Government, 
charged with the supervision o f our foreign relations, should be 
given much weight.”); United States v. Curtiss-Wright Export



18

This deferential stance toward political adminis­
tration of treaties is grounded in the Court’s recog­
nition that it is in the country’s best interest to have 
the government speak with one voice in dealing with 
other nations, as well as the Court’s respect for the 
particular expertise of those government agencies 
charged with treaty negotiation, ratification, imple­
mentation and enforcement. See Sullivan v. Kidd, 
254 U.S. 433, 442 (1920); United States v. Curtiss- 
Wright Export Corp., 299 U.S. 304, 320 (1936); Sum­
itomo Shoji Am erica, Inc. v. Avagliano , 457 U.S. 
176, 184 (1982); El A l Israel A irlines, Ltd. v. Tsui 
Yuan Tseng, 525 U.S. 155, 167 (1999).26 Thus, judicial

Corp., 299 U.S. 304, 321 (1936) ( “The marked difference between 
foreign affairs and domestic affairs in this respect is recognized by 
both houses o f Congress in the very form o f their requisitions for 
information from the executive departments. In the case o f every 
department except the Department o f State, the resolution directs 
the official to furnish the information. In the case o f the State 
Department, dealing with foreign affairs, the President is requested 
to furnish the information ‘if not incompatible with the public inter­
est.’ A  statement that to furnish the information is not compatible 
with the public interest rarely, if ever, is questioned.”); Sumitomo 
Shoji Am v. Avgliano, 457 U.S. 176, 184-85 (1982) ( “Although not 
conclusive, the meaning attributed to treaty provisions by the Gov­
ernment agencies charged with their negotiation and enforcement 
is entitled to great weight”); O’Connor v. United States, 479 U.S. 
27, 32-33(1986) ( “In determining the proper construction o f an 
agreement implementing an article o f a treaty, the consistent appli­
cation o f the agreement by the executive branch o f the Federal 
Government is a factor that is entitled to great weight.” ); Johnson 
v. Eisentrager., 339 U.S. 763, 789 n. 14 (1993); El Al 1st. Airlines v. 
Tsui Yuan Tseng, 525 U.S. 155,167 (1999) ( “Respect is ordinarily 
due the reasonable views o f the Executive Branch concerning the 
meaning o f an international treaty.” ).

26 For a comprehensive study o f the historical deference 
this and other federal courts have accorded to political imple­
mentation, interpretation, and enforcement (or non-enforcement) 
o f treaties, see Tim Wu, Treaties’ Domains, 93 Va. L. R. 571 (2007).



19

deference to the political branches in the imple­
mentation and administration of treaties operates on 
at least three levels: deference when the executive 
branch acts to make or interpret a treaty; deference 
when the legislative branch acts to implement and 
interpret a treaty; and deference when both political 
branches act in concert to administer a treaty.

A. The Court Has Traditionally Deferred To 
the President’s Power to Make and Inter­
pret Treaties

The Court has long acknowledged that, consistent 
with the power vested in the President under Article 
II o f the Constitution, the executive enjoys broad 
discretion to make treaties. See Curtiss-Wright, 299 
U.S. at 320 (stating that in the arena of foreign pol­
icy the executive branch has a “better opportunity of 
knowing the conditions which prevail in foreign 
countries.”) As “the sole organ of the nation in its 
external relations, and its sole representative with 
foreign nations,” the President enjoys “a degree of 
discretion and freedom from statutory restriction 
which would not be admissible were domestic 
affairs alone involved.” Id. This “degree of discre­
tion” extends to the President’s power to both make 
and to interpret treaties, such that when ruling upon 
the meaning of treaties, the Court has always given 
great weight to the executive branch’s interpreta­
tions of our treaty obligations. See Charlton v. 
Kelly, 229 U.S. 447,468 (1913); see also Factor v. 
Laubenheimer, 290 U.S. 276, 294-95 (1933) (stating 
that the negotiations and diplomatic correspon­
dence of the contracting parties to a treaty, while 
not conclusive, should be given great weight.) The 
Court put it best in Kidd when it explained:



20

While the question of the construction of 
treaties is judicial in its nature, and courts when 
called upon to act should be careful to see that 
international engagements are faithfully kept 
and observed, the construction placed upon the 
treaty before us and consistently adhered to by 
the Executive Department o f the Government, 
charged with the supervision of our foreign rela­
tions, should be given much weight.

254 U.S. at 442.27

Thus, in Sumitomo Shoji Am erica , Inc. v. 
Avagliano, in ruling on a claim by a Japanese trad­
ing company that pursuant to the Friendship, Com­
merce, and Navigation treaty between the United 
States and Japan, it was exempt from discrimination 
suits brought under Title VII of the Civil Rights Act, 
the Court relied on the Department of State’s inter­
pretation of the treaty. 457 U.S. 176, 184 (1982). The 
Court explained that “the meaning attributed to 
treaty provisions by the Government agencies 
charged with their negotiation and enforcement is 
entitled to great weight,” id. at 184-85, and that 
“ [w]hen the parties to a treaty both agree as to the 
meaning of a treaty provision, and that interpreta-

27 See also Collins v. Weinberger, 707 F.2d 1518, 1522 (D.C. 
Cir. 1983) ( “Courts should defer to such executive actions pro­
vided they are not inconsistent with or outside the scope o f the 
treaty.”); United States v. Noriega, 808 F. Supp. 791,796 (S.D. FI. 
1992) ( “The Court acknowledges that conducting foreign policy 
is generally the province o f the Executive branch.”); Iwonowa v. 
Ford Motor Co., 67 F. Supp. 2d 424, 486 (N.J. 1999) ( “It is evident 
that the executive branch, the department responsible for nego­
tiating international agreements, considers claims arising out o f 
World War II as falling within the ambit o f government-to-gov- 
ernment negotiations. The interpretations of the parties to a 
treaty, while not binding, are entitled to significant weight.”)



21

tion follows from the clear treaty language, [the 
Court] must, absent extraordinarily strong contrary 
evidence, defer to that interpretation.” Id. at 185. 
Similarly, in Tsui Yuan Tseng, in finding, based on 
the Warsaw Convention, that an airline passenger 
was not entitled to recovery for an intrusive security 
search, the Court reasoned that it “has traditionally 
considered as aids to a treaty’s interpretation its 
negotiating and drafting history. . .and the post-rat­
ification understanding of the contracting parties.” 
525 U.S. at 156. The court deferred to an amicus 
curiae brief from the United States government, 
holding that “the reasonable view of the Executive 
Branch concerning the meaning of an international 
treaty ordinarily merits respect.” Id.

B. The Court Has Similarly Shown Great Def­
erence to Congress’ Power to Implement 
and Interpret Treaties

Although the Court has traditionally looked to the 
Executive Branch as the predominant actor in the 
domain of treaties, it has also been respectful of and 
deferential to the power of Congress to implement 
treaties. See Foster v. Neilson , 27 U.S. 253, 314-15 
(1829), overruled on other grounds by United States 
v. Percheman, 32 U.S. 51 (1833), ( “when either of 
the parties engages to perform a particular act, the 
treaty addresses itself to the political, not the judi­
cial department; and the legislature must execute 
the contract before it can become a rule for the 
Court.”)

Congressional treaty power primarily resides in 
two areas. The first area is the advice and consent 
provided by the Senate for treaty ratification. The 
second area is congressional discretion to enact



22

appropriate legislation, thereby choosing how a par­
ticular non-self-executing treaty obligation is to be 
enforced in the United States. Once Congress 
chooses to enact a statute for purposes o f imple­
menting a treaty, the statutory text completely 
supersedes the treaty regime as a basis for judicial 
enforcement, such that “a court will not undertake 
to construe a treaty in a manner inconsistent with a 
subsequent federal statute.” Baker v. Carr, 369 U.S. 
186, 212 (1962). But, even when Congress has cho­
sen not to enact specific legislation implementing a 
treaty, federal courts, again deferential to congres­
sional authority, have always looked to the passage 
of prior legislation as a sign of congressional intent 
regarding the matter covered by the treaty in ques­
tion. Certainly, we do not lack examples of courts 
deferring to prior legislation as a basis for declining 
to independently enforce subsequent non-self-exe­
cuting treaty obligations for which Congress has not 
passed implementing legislation.28 Indeed, even 
when Congress appears to act in a manner incon-

28 See, e.g., Beazley v. Johnson, 242 F.3d 248, 266 (5th Cir. 
2001); Igartua De La Rosa v. United States, 32 F.3d 8, 10 n.l (1st 
Cir. 1994) (holding that a right to vote under Article 25 of ICCPR 
is not an independently enforceable right under U.S. Law); Hein­
rich  v. Sweet, 49 F. Supp 2d 27, 43 (D. Mass. 1999) (finding that 
plaintiffs have adequate domestic remedies for claims o f “crimes 
against humanity”); Hawkins v. Comparet-Cassani, 33 F. Supp. 
2d 1244, 1257 (C.D. Cal. 1999) (holding that the ICCPR does not 
create a right o f private action under which the plaintiff can suc­
cessfully state a claim); White v. Paulsen, 997 F. Supp. 1380, 
1387 (E.D. Wash. 1998) (reasoning that “the United States Sen­
ate expressly declared that the relevant provisions o f the ICCPR 
were not self-executing when it addressed this issue in provid­
ing advice and consent to the ratification”); In  re Extradition of 
Cheung, 968 F. Supp 791, 803 n.17 (D. Conn. 1997) (stating that 
the ICCPR cannot support an extradition defense.).



23

sistent with a United States treaty obligation, federal 
courts have nonetheless deferred to congressional 
treaty prerogative by refusing to assume a separate 
power on the part of the judiciary to independently 
enforce treaties. See, e.g. Whitney v. Robertson, 124 
U.S. 190, 194 (1888) ( “holding that if there be any 
conflict between the stipulations of the treaty and 
the requirements o f the law, the latter must con­
trol”); United Shoe Machinery Co. v. Duplessis 
Shoe Machinery Co., 155 F. 842, 843-45, 849 (1st Cir. 
1907) (holding that if “Congress has legislated on 
the topic since the treaty was ratified. . . that sub­
sequent legislation, so far as it expresses any Con­
gressional purpose inconsistent with any claimed 
construction” of a treaty “that purpose controls”); 
Rousseau v. Brown, 21 App. D.C. 73, 76-77 (1903) 
(holding a patent treaty nonbinding absent an act of 
Congress).

C. Deference to the Political Branches is Par­
ticularly Apt When the President and 
Congress Act in Concert

Above and beyond the deference this Court has 
traditionally accorded to the executive and legisla­
tive, acting pursuant to each branch’s independent 
treaty powers, it has shown even greater deference 
when the political branches act in concert to con­
duct foreign affairs. More than fifty years ago, the 
Court made it clear that no greater deference is 
owed than when the President conducts foreign 
affairs pursuant to an express or implied autho­
rization of Congress. See Youngstown Sheet & Tube 
Co. v. Sawyer, 343 U.S. 579 (1952) (Jackson, J., con­
curring). As Justice Jackson wrote,

When the President acts pursuant to an express 
or implied authorization of Congress, his



24

authority is at its maximum, for it includes all 
that he possesses in his own right plus all that 
Congress can delegate. . . . [An action] exe­
cuted by the president pursuant to an act of 
Congress would be supported by the strongest 
of presumptions and the widest latitude of judi­
cial interpretation, and the burden of persuasion 
would rest heavily upon any who might attack 
it.

Id. at 635-36.

Thus, in Curtiss-Wright, upon which Justice Jack- 
son relied in his Youngstown concurrence, the Court 
declined to rule on the constitutionality of an exec­
utive order, issued pursuant to a congressional res­
olution, barring the sale of weapons by an American 
company to a foreign company. 299 U.S. at 319. The 
court reasoned that, in the arena of foreign affairs, 
congressional delegation of power to the President 
should be given great weight. Id. The Court came to 
the same conclusion in Dames & Moore v. Regan, 
when, relying on Justice Jackson’s Youngstown con­
currence, it confirmed the President’s authority to 
order the transfer o f Iranian assets, holding that 
because the President, in conducting foreign affairs, 
acted “pursuant to specific congressional autho­
rization, [his actions were] supported by the 
strongest of presumptions and the widest latitude of 
judicial interpretation.” 453 U.S. 654, 674 (1981).29

But, even when Congress is less than explicit, 
judicial deference still attaches to executive treaty 
interpretation if Congress remains silent in the face

By contrast, the Court has shown less deference when 
the political branches appear to be at odds in the area o f foreign 
affairs. See Hamdan v. Rumsfeld, 548 U.S. 557 (2006).



25

of actions by the President, committing the United 
States to a particular treaty regime. See, e.g. Cook v. 
United States, 288 U.S. 102 (1933) (holding that a 
treaty is not abrogated by the subsequent re-enact­
ment of a law that does not clearly express con­
gressional intent to abrogate the treaty and any 
doubt as to the construction of the law in relation to 
the treaty should be deemed resolved by the con­
sistent departmental practice existing before its 
enactment); Nagle v. L o i Hoa, 275 U.S. 475, 481-82 
(1928) (concluding that re-enactment o f section six 
of the amended Exclusion Act, with no change, and 
subject to the provisions of an expired treaty, “must 
be accepted as a legislative approval of the practical 
construction the section had received” by the 
agency charged with regulating immigration.); 
TransWorld A irlines, Inc. v. Franklin M int Corp., 
466 U.S. 243, 252 (1984) (stating that “ [legislative 
silence is insufficient to abrogate a treaty.”); 
McCaughn v. Hershey Chocolate Co., 283 U.S. 488, 
492-93 (1931) (contending that “[t]he reenactment of 
[a] statute by Congress, as well as the failure to 
amend it in the face of the consistent administrative 
construction, is at least persuasive evidence of a leg­
islative recognition and approval o f the statute as 
constructed.”); Brewster v. Gage, 280 U.S. 327, 337 
(1930) (stating that “ [t]he subsequent reenactment 
in later Acts of the provision theretofore construed 
by the department is persuasive evidence of leg­
islative approval of the regulation” and “ [t]he sub­
sequent legislation confirmed and carried forward 
the policy evidenced by the earlier enactments as 
interpreted in the regulations promulgated under 
them.”)



26

D. The Political Interpretation that the Vot­
ing Rights Act Fulfills in part our ICCPR  
and CERD Obligations Deserves the Same 
Deference the Court has Traditionally 
Accorded to Treaty Interpretation by the 
Political Branches

Here, the Executive Branch has declared our obli­
gations under both the ICERD and the ICCPR to have 
been met by, inter alia, the Voting Rights Act of 1965 
and the 2006 reauthorization of that Act which 
includes an extension of Section 2 and the Section 5 
preclearance provision. Congress has remained silent 
in the face of these Executive Branch declarations. 
Consequently, this Court should uphold Sections 2 
and 5 of the Voting Rights Act as measures advanced 
by the Executive Branch as enforcing the obligations 
under the ICERD and the ICCPR, both of which the 
United States has decided to treat as non-self-exe­
cuting treaties. Any other conclusion runs the risk of 
compromising United States’ compliance with these 
treaty obligations and sending mixed messages to 
those with whom we have entered into multilateral 
agreements such as the ICERD and the ICCPR.

I l l

IT IS FITTING THAT THE VOTING 
RIGHTS ACT SHOULD BE ONE OF THE 
BASES FOR MEETING OUR ICCPR AND  

CERD OBLIGATIONS BECAUSE OUR 
HOMEGROWN NOTIONS OF EQUALITY 

HAVE HISTORICALLY BEEN INSPIRED BY 
INTERNATIONAL HUMAN RIGHTS NORMS

The genius of the American system of constitu­
tional government is not that it emerged fully



27

mature at our founding, but that our homegrown 
moral philosophy of civil and political rights has 
always had a symbiotic relationship with interna­
tional human rights norms.

Our constitutional government is at its core a real­
ization of the European Enlightenment’s conception 
of the relationship between the individual and the 
state.30 Thomas Jefferson was directly channeling 
John Locke,31 John Stuart Mill,32 Immanuel Kant33 
and Jean-Jacques Rousseau34, among others, when 
he wrote in the Declaration of Independence: “We 
hold These truths to be self-evident, that all Men are 
created equal, that they endowed by their creator 
with certain unalienable Rights, that among these 
are Life, Liberty, and the Pursuit of Happiness.”35

This vision of the Enlightenment was embodied 
not just in the Declaration of Independence but was 
also reflected in both the structure o f government

30 See Alasdair MacIntyre, After Virtue 53-55 (2d ed., 1984); 
Thomas C. Grey, Do We Have An Unwritten C onstitu tion?, 
27 Stan. L. Rev. 703, 715-16 (1975).

31 See John Locke, Two Treatises o f Government 271 (P. 
Laslett ed. Cambridge University Press 1988) (1690).

32 See John Stuart Mill, On Liberty  14 (John Gray ed. 
Oxford Univ. Press 1991) (1859).

33 See Immanuel Kant, P o litica l Writings 61, 75 (Hans 
Reiss ed. & H. B. Nisbet trans., Cambridge Univ. Press 1991) 
(1793).

34 See Jean-Jacques Rousseau, Discours sur Ueconomie 
politique, in 3 Jean-Jacques Rousseau, Ouevres Completes 239, 
263 (Bernard Gagnebin & Marcel Raymond eds., 1964) (1775). 
For an examination o f Rousseau’s philosophy and its influence 
on American constitutionalism, see Nelson Lund, Rousseau and 
Direct Democracy, 13 J. Contemp. Legal Issues 459 (2004).

The Declaration o f Independence, H 1 (U.S. 1776).35



28

adopted by the Constitution and in its enumeration 
of individual rights. From a structural perspective, 
the Constitution embodied “a philosophy of gov­
ernment that was highly protective of individual lib­
erty and manifestly Lockean. Separation of powers 
between the executive, legislative, and judiciary, 
with checks and balances built into the system to 
prevent overweening government or, in the worst 
case, tyranny, is straight from the classical liberal, 
Lockean playbook.” Ellen Frankel Paul, Freedom of 
Contract and the “Politica l Economy” o f Lochner v. 
New York, 1 N.Y.U. J. L. & Liberty 515, 535 (2005); 
see also Thomas L. Pangle, The S p ir it o f Modern 
Republicanism: The Moral Vision of the American 
Founders and the Philosophy o f Locke (1988). From 
a rights perspective, the Bill of Rights, as a charter 
o f “negative” liberties, protecting certain areas of 
individual freedom from state interference, is at bot­
tom a realization o f the Enlightenment’s idea of 
placing individual liberty and autonomy at the cen­
ter of the political universe.36

For two hundred years, the international pedigree 
of our constitutional system was plainly reflected in 
our jurisprudence. In 1783, Blackstone described the 
law of nations as “a system of rules, deducible by 
natural reason and established by universal consent 
among the civilized inhabitants of the world . . . 
adopted [in England] in its full extent by the com­
mon law, and . . . held to be a part of the law of the 
land.” 4 W. Blackstone, Commentaries 66-67 (reprint 
1978). Throughout the Nineteenth and much of the 
Twentieth Century, this very Court would consis­
tently preserve Blackstone’s account such that the

36 David P. Currie, Positive and Negative Constitutional 
Rights, 53 U. CHI. L. REV. 864, 886 (1986).



29

use of international norms to shape and inform 
domestic law was neither uncommon nor terribly con­
troversial. See, e.g., Respublica v. De Longchamps, 
1 U.S. (1 Dali.) I l l ,  114 (1784) (held that assault by 
U.S. citizen on French diplomat constituted a vio­
lation of international law, which formed a part of 
domestic law); Talbot v. Janson, 3 U.S. (3 Dali.) 133, 
161 (1795) (held that international law creates a 
domestic cause of action in seizure of foreign vessel 
on international waters); Ware v. Hylton, 3 U.S. (3 
Dali.) 199 (1796) (used law of nations to examine 
Virginia statute to confiscate property o f British 
subjects base); Talbot v. Seeman, 5 U.S. (1 Cranch) 
1, 36 (1801) (held that international law authorized 
U.S. salvage of Hamburg vessel recaptured from 
French); Thirty Hogsheads o f Sugar v. Boyle, 13 
U.S. (9 Cranch) 191, 198 (1815) (held that interna­
tional law gave Danish plaintiff cause of action for 
seizure of property by U.S. defendant); The Nereide, 
13 U.S. (9 Cranch) 388, 423 (1815) (held that inter­
national law bound U.S. court in contract action 
between British and Argentine subjects); Bentzon v. 
Boyle, 13 U.S. (9 Cranch) 191, 198 (1815) (process 
for determining the law of nations governing bel­
ligerent and neutral rights); The Antelope, 23 U.S. 
(10 Wheat) 66 (1825) (used international law to 
examine illegality o f the slave trade); The Scotia, 
81 U.S. (14 Wall.) 170, 187 (1871) (awarded damages 
against a British vessel for the accidental sinking of 
an American ship, noting that “no single nation can 
change the law of the sea.”); United States v. 
Arjona, 120 U.S. 479, 487 (1887) (stated that inter­
national law imposed a positive obligation upon the 
United States to punish the counterfeiting of foreign 
notes.) But perhaps no formulation expressed it bet-



30

ter than Justice Gray’s well known statement in The 
Paquete Habana:

International law is part of our law, and must be 
ascertained and administered by the courts of 
justice o f appropriate jurisdiction, as often as 
questions of right depending upon it are duly 
presented for their determination.

175 U.S. 677, 700 (1900).

In terms of our struggle for racial equality, almost 
from the moment the first African slaves disem­
barked in Virginia in 1669, there arose in the colonies 
an anti-slavery movement grounded in European 
Quaker philosophy. See Ruth A. Ketrin, Charles 
Osborn in  the Anti-Slavery Movement (1937). Thus, 
in 1657, George Fox, a Quaker leader, published a 
document titled “To Friends beyond the sea that 
have Black and Indian Slaves,” in which he argued 
that “all men of earth were of one blood.” See Her­
bert Aptheker, The Quakers and Negro Slavery, 25 
Journal of Negro History 332 (1940). As the aboli­
tionist movement began to take root, northern blacks 
argued for American citizenship by pointing out that 
under international customary law, “the strongest 
claim to citizenship is birth-pace” and that “in what­
ever country or place you may be born . . .you are in 
the first and highest sense a citizen.” This Country 
Our Only Home, 1 Colored x American, May 9, 1840. 
Frederick Douglas challenged the constitutional 
compromise that denied people of African descent 
their personhood and citizenship based on natural 
law and other concepts that were advanced by 
the philosophers of the European Enlightenment.37

David Brion Davis, The Emergence o f Immediatism in  
B ritish  and American Antislavery Thought, in  Articles on 
American Slavery 85, 85 (Paul Finkelman ed., 1989).



31

Northern and Southern abolitionists found and cited 
as inspiration the 1803 slave revolution in Haiti led 
by the former slave Toussaint L’Ouverture. See 
Robert C. Morris, Reading, “R itin g ,” and Recon­
struction: The Education of Freedmen in  the South 
1861-1870 199 (1981).

During the Jim Crow era, intellectuals and 
activists such as W. E. B. DuBois examined parallels 
between the struggle for Irish Independence from 
the British and the African-American struggle for 
equal rights. See Susan M. Glisson, The Human Tra­
d ition  in  the C iv il Rights Movement 80 (2006). 
These advocates used international mechanisms to 
pressure the United States government by, in ter 
alia, petitioning the United Nations for relief from 
the laws that maintained the racial segregation of 
Jim Crow as a matter of constitutional equality. See 
Carol Anderson, Eyes o ff the Prize : The United 
Nations and the A frican American Struggle fo r  
Human Rights, 1944-1956 20 (2003). The first such 
petition to the United Nations Commission on 
Human Rights was submitted by the National Negro 
Congress (NNC) on January of 1946. Id. In 1947, a 
supplement to the original draft o f the NNC United 
Nations petition was submitted, expanding the focus 
from African Americans to all peoples of color in the 
United States. Id. at 89. The supplement also stated 
how Jim Crow Laws in the United States discrimi­
nated against Third World U.N. delegates. Id. The 
supplement concluded that the Negro problem in 
America was more than an internal problem, but 
rather had international implications that should be 
addressed by the world. Id. In 1947, the National 
Association for the Advancement of Colored People 
(NAACP) filed a petition to the United Nations 
titled, “An Appeal to the World: A Statement on the



32

Denial of Human Rights to Minorities in the Case of 
Citizens o f Negro Descent in the United States of 
America and an Appeal to the United States for 
Redress.” Azza Salama Layton, International P o li­
tics and, C iv il Rights Policies in  the United States 
1941-1960 51 (2000).

These petitions were rooted in notions o f free­
dom, liberty, self-determination and natural rights 
through international laws, such as the Universal 
Declaration of Human Rights, on which the United 
States placed its imprimatur at the close o f World 
War II.38 Leaders in the civil rights movement o f the 
1950s and 1960s used human rights norms and stan­
dards to state their claims in ways the Constitution 
seemed unable to comprehend. Whether James 
Nabrit’s use of the Universal Declaration of Human 
Rights to challenge the continuing constitutionality 
of segregated public schools in the District of 
Columbia, or Dr. Martin Luther King, Jr.’s final 
speech before his death in which he placed the labor 
struggle of Memphis’ black garbage collectors in the 
broader context of “the human rights revolution,” or 
the statement, by Malcolm X that “the day the black 
man turns from civil rights to human rights, he will 
take his case into the halls of the United Nations in

38 Eleanor Roosevelt, On The Adoption o f the Universal 
Declaration o f Human Rights (December 9, 1948) (noting that 
“ [t]he long and meticulous study and debate o f which this Uni­
versal Declaration of Human Rights is the product means that it 
reflects the composite views o f the many men and governments 
who have contributed to its formulation. . . . Taken as a whole 
the Delegation o f the United States believes that this is a good 
document— even a great document— and we propose to give it 
our full support.”) http://www.americanrhetoric.com/speeches/ 
eleanorrooseveltdeclarationhumanrights.htm; see also William 
L. Patterson, We Charge Genocide: The Crime o f Government 
Against the Negro People vii (1970).

http://www.americanrhetoric.com/speeches/


33

the same manner as the people in Angola, whose 
human rights have been violated by the Portuguese 
in South Africa,”39 human rights have been an impor­
tant reference point for those struggling for full per- 
sonhood and citizenship for all regardless o f race, 
color or creed.40

These examples demonstrate the historical tradi­
tion o f viewing racial justice in America as both a 
domestic and an international imperative. This cus­
tom is made more salient by our government’s agree­
ment, by way of signature and ratification, to be 
bound by treaties such as the ICERD and the ICCPR. 
That this agreement is subject to conditions is 
beyond question. What is crucial to the points made 
in this brief is that assuming, arguendo, these con­
ditions are legitimate, then the position advanced by 
at least two presidents is one that recognizes the 
Voting Rights Act as crucial to satisfying our treaty 
obligations under both ICERD and ICCPR.

39 Malcolm X, The Leverett House Forum o f March 18, 
1964, in Malcolm X: Speeches at Harvard 143-44(Archie Epps, ed. 
1991)

40 See e.g. James Jennings, The International Convention 
on the E lim in a tion  o f A ll Forms o f Racial D iscrim ination  
(C ERD ): The Inernational Convention on the E lim ination  of 
A ll Forms o f Racial D iscrim ination : Im plications fo r  Chal­
lenging Racial Hierarchy, 40 How. L.J. 597 (1997); Gay J. 
McDougall, The International Convention on the E lim ination  
of A ll Forms of Racial D iscrim ination (CERD): Introduction: 
Toward a Meaningful International Regime: The Domestic Rel­
evance o f International Efforts to Elim inate A ll Forms o f 
Racial D iscrim ination , 40 How. L.J. 571 )(1997); Dorothy Q. 
Thomas, Advancing Rights Protection in  the United States: An 
Internationalized Advocacy Strategy, 9 Harv. Hum. Rts. J. 15, 
18(1996).



34

CONCLUSION

For the foregoing reasons, we pray the Court 
uphold the decision of the United States District 
Court for the District o f Columbia.

Respectfully submitted,

Aderson Bellegarde Franqois 
Counsel of Record 

Associate Professor of Law 
& Supervising Attorney of 
the Civil Rights Clinic 

Lisa A. Crooms 
Professor of Law 
Howard University School of Law 
2900 Van Ness Street N.W. 
Washington D.C. 20008 
(202) 806-8065