Amicus Curiae Brief — Gratz v. Bollinger

’

“

“ oy,

Nos. 02-241, 02-516 FEB 14 2003

In The | OFRED ar eS

Supreme Court of the Anited States

o

BARBARA GRUTTER,

Petitioner,

V.

LEE BOLLINGER, et al.,

Respondents.

¢

JENNIFER GRATZ and PATRICK HAMACHER,

Petitioners,

Vv.

LEE BOLLINGER, et al.,

Respondents.

¢

On Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

+

BRIEF AMICI CURIAE HUMAN RIGHTS

ADVOCATES AND THE UNIVERSITY OF

MINNESOTA HUMAN RIGHTS CENTER

IN SUPPORT OF RESPONDENTS

¢

CONSTANCE DE LA VEGA

Counsel of Record

UNIVERSITY OF SAN FRANCISCO

LAW CLINIC

2130 Fulton Street

San Francisco, CA 94117

(415) 422-6752

Attorney for Amici Curiae

Human Rights Advocates and

the University of Minnesota

Human Rights Center

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

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TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE ...................:000000 1

BRIEF AMICUS CURIAE SUMMARY OF THE AR-

IIIT cusinctcesdusnnesditeiidintighibeesiiniduipieaneniinnnen 2

ITE wsntcdencecccdncatsitedinsenatidbibuacimnenitneneenenee 4

I. Treaty Provisions are the Supreme Law of

the Land Under the U.S. Constitution........... 4

II. A Reversal of the Decision of the Sixth

Circuit Would Impair the Ability of State and

Local Governmental Entities to Institute

Measures Designed to Meet U.S. Treaty Ob-

eR ccrvesccssssnniminncstansiiianemsmninnnmenenmesntens 5

III. The Application of the Self-Executing Doc-

eR icestpnccscsinccncnvesentencanisinsieneiiseshenesemancenenss 11

IV. The Treaties Are Helpful for Interpreting

United States Standards .................ccccseeeeeeee 15

III cccisisisihiiticintcitettbinibasiianiiuiedniiesinnanddintinnins 17

‘i

TABLE OF AUTHORITIES

Page

CASES

Adarand Contractors, Inc. v. Pena, 515 U.S. 200

CRI... ccccsncnsntuiecsuntanenenessnasitnieineinecenabentmiemenpieneceneinemuentn is)

Asakura v. City of Seattle, 265 U.S. 332 (1924)...........0000 4

Cal. Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S.

RE ccsncenccntsnssintiientanstibimmnnsesnaiennemmipneemmeneammen 1

Chew Heong v. United States, 112 U.S. 536 (1884)........... 12

Comm. of U.S. Citizens Living in Nicar. v. Reagan,

859 F.2d 929 (D.C. Cir. 1988) ........cccccceceeeeeseeeeeeseeeenneees 12

Clark v. Allen, 331 U.S. 503 (1947) ......ccccccccceeeeseeeeeeeeeennens 4

Cook v. United States, 288 U.S. 102 (1933)............csceeeeeees 12

Ford v. United States, 273 U.S. 593 (1927) .........cccerceceeees 15

Foster v. Neilson, 27 U.S. (2 Pet.) 253 (1829).............. 11, 12

Frolova v. Union of Socialist Republics, 761 F.2d

CG, BD ceccrcsiccccnsnsenececentersasnicsssnsccscoocsconga 12, 13

Gratz v. Bollinger, 122 F. Supp. 2d 811 (E.D. Mich.

I nsccces hana caine heen mnamnapiangnannenesnnsescnenenNenn 3

Greenham Women Against Cruise Missiles v.

Reagan, 755 F.2d 34 (2nd Cir. 1985)...........sseeeeeeeeeees 1

Grutter v. Bollinger, 288 F.3d 732 (6th Cir. 2002).......... 2,3

Hilao v. Estate of Marcos, 103 F.3d 789 (9th Cir.

SEES RC Leone aoe eee ENE 1

In Re Stanford, cert. denied, 123 S. Ct. 472 (Mem),

dissenting Opinion (2002)...........scceeeeeeseeereeeereeeeesnenneennes 1

Jones v. Meehan, 175 U.S. 1 (1899)...........:ccccceeeeeeeeeeeeenens 12°

iii

TABLE OF AUTHORITIES - Continued

Page

Kolovrat v. Oregon, 366 U.S. 187 (1961) ..........ccccccceccceceees 15

Lareau v. Manson, 507 F. Supp. 1177 (D. Conn.

EE ee 15

Missouri v. Holland, 252 U.S. 416 (1920) ...........ccccccccccceees 4

Patsone v. Pennsylvania, 232 U.S. 138 (1914) ..........000.... 15

People of Saipan v. United States Dep't of Interior,

ee ee PE GI, OO ccccececccececcecccnecsccccecsesccscscseees 12

United States v. Percheman, 32 U.S. (7 Pet.) 51

CEE 11, 12

United Steelworkers v. Weber, 443 U.S. 193 (1979) .......... 16

University of California v. Bakke, 438 U.S. 265, 98

re 2,3

Zschernig v. Miller, 389 U.S. 429 (1968) ....0.........cccccccccceees 4

CONSTITUTIONS

ee GI tl OO certteeneseccnscetncensnnccnsnccncneccnsocses 4

MISCELLANEOUS

138 ConG. Rec. S4781-84 (April 2, 1992) 0.0.0.0... 5,14

140 Cona. REC. S7634 (June 24, 1994) .0........ccccccccceees 5, 14

Carlos Manuel Vazquez, The Four Doctrines of Self-

Executing Treaties, 89 AM. J. INT'L L. 695 (1995)........ 11,12

Connie de la Vega, Civil Rights During the 1990s:

New Treaty Law Could Help Immensely, 65 U. CIN.

A 9

iv

TABLE OF AUTHORITIES - Continued

Page

Connie de la Vega & Jennifer Fiore, The Supreme

Court of the United States Has Been Called Upon

to Determine the Legality of the Juvenile Death

Penalty in Mic\.ael Domingues v. State of Ne- -

vada, 21 WHITTIER L. REV. 215 (1999).............ccccceeeeeeees 14

Consideration of Reports: Comments of the Human

Rights Committee, United States of America,

U.N. GAOR, Hum. Rts. Comm. 53rd Sess., U.N.

Doc. CCPR/C/79/Add. 50 (1995).............ccccccceeeneereeneeees 10

FRANK NEWMAN & DAVID WEISSBRODT, INTERNA-

TIONAL HUMAN RIGHTs: LAW, POLICY, AND PROCESS

EE 12

Gordon A. Christenson, Using Human Rights Law

to Inform Due Process and Equal Protection

Analyses, 52 U. CIN. L. REV. 3 (1983) ..............ccccseeeeees 15

International Convention on the Elimination of All

Forms of Racial Discrimination (Race Conven-

tion), opened for signature March 7, 1966, 660

U.N.T.S. 195 (entered into force January 4, 1969;

entered into force for the United States November

International Covenant on Civil and Political

Rights (Civil and Political Covenant), opened for

signature Dec. 19, 1966, 999 U.N.T.S. 171 (en-

tered into force March 23, 1976; entered into force

for the United States September 8, 1992).............. passim

John Quigley, Human Rights Defenses in U.S.

Courts, 20 HUM. RTS. Q. 555 (1998)..............cccceseeseeeeees 14

Optional Protocol to the Covenant on Civil and

Political Rights, G.A. Res. 2200A, U.N. GAOR,

21st Sess., Supp. No. 16, at 59, U.N. Doc. A/6316

TABLE OF AUTHORITIES — Continued

Page

Prevention of Discrimination: The Concept and

Practice of Affirmative Action: Report of the Spe-

cial Rapporteur, Sub-Comm.on the Promotion and

Protection of Human Rights, 53rd Sess., Agenda

Item 5, U.N. Doc. E/CN.4/Sub.2/2002/21 (June

Ruth Bader Ginsburg & Deborah Jones Merritt,

Affirmative Action: An International Human

Rights Dialogue, 1 RUTGERS RAcE & L. Rev. 193

Statement of Conrad Harper, Legal Advisor, U.S.

Department of State, to the United Nations Hu-

man Rights Committee, U.N. GAOR, Hum. Rts.

Comm., 53rd Sess., 1405th mtg., U.N. Doc.

Stefan A. Riesenfeld & Frederick M. Abbott, The

Scope of U.S. Senate Control Over the Conclusion

and Operation of Treaties, 67 CHI.-KENT L. REV.

el creitectenmsmssniemeumnemarpnioapipuameenigs 11, 12,14

U.N. GAOR, Hum. Rts. Comm. 37th Sess., 984th

mtg., at 4, U.N. Des CCPR/C/2 V/Rev. 1/Add.1

1

INTEREST OF AMICUS CURIAE

Pursuant to Supreme Court Rule 37.2, Human Rights

Advocates and the University of Minnesota Human Rights

Center submit this brief amicus curiae in support of

Respondents.’ The parties have granted permission for the

filing of all amicus curiae briefs and the consent letters

have been lodged with the Clerk of this Court. Human

Rights Advocates is a non-profit California corporation

founded in 1978 with national and international member-

ship. It has Special Consultative Status in the United

Nations. It endeavors to ensure that the most basic protec-

tions are afforded to everyone, and has submitted briefs in

cases involving individual and group rights where interna-

tional standards offer assistance in interpreting both state

and federal statutes at issue. Examples of amicus briefs

that Human Rights Advocates has filed include those in

the following cases: Cal. Fed. Sav. & Loan Ass’n v. Guerra,

479 U.S. 272 (1987); Greenham Women Against Cruise

Missiles v. Reagan, 755 F.2d 34 (2nd Cir. 1985); Hilao v.

Estate of Marcos, 103 F.3d 789 (9th Cir. 1996); In Re

Stanford, cert. denied, 123 S. Ct. 472 (Mem), dissenting

opinion (2002).

The University of Minnesota Human Rights Center

was inaugurated December 1988 on the occasion of the

fortieth anniversary of the Universal Declaration of

Human Rights. The principal focus of the Human Rights

* Pursuant to Rule 37.6, Amici Curiae affirm that no counsel for

any party authored this brief in whole or in part and that no person or

entity other than Amici Curiae, its members, or its counsel made a

monetary contribution specifically for the preparation or submission of

this brief.

2

Center is to help train effective human rights profession-

als and volunteers. The Human Rights Center assists

human rights advocates, monitors, students, and educa-

tors.”

Amici would like to take the opportunity to inform

this Court of the applicable treaty standards, as well as

the constitutional standards involved in this case.

4

BRIEF AMICUS CURIAE

SUMMARY OF THE ARGUMENT

In the interest of achieving a diverse student body, the

University of Michigan Law School’s (“Law School”)

admission policy allows for consideration of factors which

“may help achieve that diversity which has the potential

to enrich everyone’s education and thus make a law school

class stronger than the sum of its parts.” Grutter v. Bollin-

ger, 288 F.3d 732, 736 (6th Cir. 2002). The Court of Ap-

peals for the Sixth Circuit correctly applied the law in

upholding the Law School’s admission policy. A reversal of

this decision would conflict with U.S. treaty obligations.

The Court of Appeals opinion reversed the trial court's

- decision and vacated the injunction prohibiting the Law

School from considering race and ethnicity in its admis-

sions decisions. The Court of Appeals upheld the Law

School’s admissions policy and found it to be virtually

identical to that approved by the Court in University of

California v. Bakke, 438 U.S. 265, 98 S. Ct. 2733 (1978).

? Positions of the Human Rights Center do not necessarily reflect

the views of the Regents of the University of Minnesota.

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3

Grutter, 288 F.3d at 747. The court found that the Law

School has a compelling interest in achieving a diverse

student body and that this is permissible under Bakke, so

long as race and ethnicity are used only as positive factors

in the admissions process and quotas are not used. Jd. at

745-46. Amici concerned that a reversal of the Court of

Appeals decision would be contrary to the United States’

treaty obligations which are now part of the Law of the

Land under the Supremacy Clause of the United States

Constitution.’

Amici would like to bring to the Court’s attention the

treaty standards applicable to this case under the Interna-

tional Convention on the Elimination of All Forms of

Racial Discrimination (Race Convention), opened for

signature March 7, 1966, 660 U.N.T.S. 195 (entered into

force January 4, 1969; entered into force for the United

States November 20, 1994), and the International Cove-

nant on Civil and Political Rights (Civil and Political

Covenant), opened for signature Dec. 19, 1966, 999

U.N.T.S. 171 (entered into force March 23, 1976; entered

into force for the United States September 8, 1992). In

turn, Amici urge this Court to interpret the policy in

question so that it conforms to obligations under those

duly ratified treaties. A decision to the contrary could

impair the ability of local and state governmental entities

to institute measures designed to meet obligations under

the treaties and the United States Constitution. Hence, it

is critical that this Court consider the treaty obligations

* Since no opinion has been issued in Gratz v. Bollinger, 122

F. Supp. 2d 811 (E.D. Mich. 2000), amici have focused their comments

on the Grutter case. However, the treaty standards are applicable to the

Gratz case as well.

4

when construing the application of the constitutional

standards applicable to this case.

+

ARGUMENT

I. Treaty Provisions are the Supreme Law of the

Land Under the U.S. Constitution

Under the United States Constitution Article VI,

section 2 of clause 2, “all treaties made or which shall be

made, under the authority of the United States shall be

the Supreme Law of the Land, and the Judges in every

State shall be bound thereby, anything in the Constitution

or Law of any State to the contrary notwithstanding.” U.S.

Const. art. VI, § 2, cl. 2. When a treaty and state law

conflict, the treaty controls. See Zschernig v. Miller, 389

U.S. 429, 440-41 (1968); Clark v. Allen, 331 U.S. 503, 508

(1947); see also Missouri v. Holland, 252 U.S. 416, 433-35

(1920) (concluding that the validity of a treaty was not

undermined by a possible infringement on states’ rights

under the Tenth Amendment unless it violated an express

prohibition of the Constitution). Also, courts should con-

strue treaties “in a broad and liberal spirit, and when two

constructions are possible, one restrictive of rights that

may be claimed under it and the other favorable to them,

the latter is to be preferred.” Asakura v. City of Seattle,

265 U.S. 332, 342 (1924). In this case, there is no conflict

between the treaty and the state practices being chal-

lenged. Also, there is no conflict with any express provi-

sions in the Constitution.

The United States ratified the International Conven-

tion on the Elimination of All Forms of Racial Discrimina-

tion, which entered into force for the United States on

—

5

November 20, 1994. 140 Cona. Rec. $7634 (June 24,1994).

As of December 9, 2002, 167 states have become parties to

the Race Convention and pledged to eradicate racial

discrimination within their borders. See the United States

High Commissioner on Human Rights status of treaty

ratifications (last modified Dec. 9, 2002), available at

http://www.unhchr.ch/pdf/report.pdf. Previously, the United

States had become a party to the International Covenant on

Civil and Political Rights on September 8, 1992. 138 Conc.

REC. S4781-84 (April 2, 1992). The United States is now

one of 149 countries that are parties to that treaty. See the

United Nations High Commissioner on Human Rights

status of treaty ratifications (last modified Dec. 9, 2002),

available at http://www.unhchr.ch/pdf/report. pdf.

The Race Convention and the Civil and Political

Covenant, as ratified treaties, are the Supreme Law of the

Land. The United States is now bound to protect the

rights enumerated in those treaties. Both treaties estab-

lish committees to monitor compliance with treaty provi-

sions. Under the Race Convention, this body is called the

Committee on the Elimination of Racial Discrimination.

Race Convention, art. 8-15. The enforcement body estab-

lished by the Civil and Political Covenant is the Human

Rights Committee. Civil and Political Covenant, art. 28-

45.

Il. A Reversal of the Decision of the Sixth Cir-

cuit Would Impair the Ability of State and Lo-

cal Governmental Entities to Institute Measures

Designed to Meet U.S. Treaty Obligations

The Race Convention and the Civil and Political

Covenant elaborate on the basic principles of equality and

6

nondiscrimination. The Race Convention focuses specifi-

cally on discrimination and thus addresses a wide range of

categories of rights in which discrimination is prohibited.

It provides that State Parties to the treaty must attempt

to prohibit and to eliminate racial discrimination and to

guarantee the equal right to enjoyment of civil and politi-

cal rights. Race Convention, art. 5. Furthermore, it con-

tains very specific provisions mandating affirmative action

programs to remedy discrimination and provides that such

actions shall not be deemed discrimination. Race Conven-

tion, art. 2(1).

The critical definition of racial discrimination is set

forth in Article 1(1) of the Race Convention:

[A]ny distinction, exclusion, restriction or prefer-

ence based on race, colour, descent, or national or

ethnic origin which has the purpose or effect of

nullifying or impairing the recognition, enjoy-

ment or exercise, on an equal footing, of human

rights and fundamental freedoms in the political,

economic, social, cultural or any other field of

public life.

The Race Convention, however, also provides an

exception for special measures that are “taken for the sole

purpose of securing adequate advancement of certain

racial or ethnic groups or individuals requiring such

protection as may be necessary in order to ensure such

groups or individuals equal enjoyment or exercise of

human rights or fundamental freedoms. . . .” art. 1(4). This

is an exception designed for affirmative action programs

and for other measures states may take to further the

aims of the treaty.

7

The Race Convention outlines the fundamental

obligations of State Parties to take steps to erase discrimi-

nation within their borders and obligates States Parties to

“undertake to pursue by all appropriate means and with-

out delay a policy of eliminating racial discrimination in

all its forms....” Race Convention, art. 2(1). It also re-

quires State Parties to ensure protection of rights within

social, economic, cultural and other fields by taking

“special and concrete measures ... for the purpose of

guaranteeing [racial groups or individuals belonging to

them] the full and equal enjoyment of human rights and

fundamental freedoms.” Race Convention, art. 2.

The provisions in the Civil and Political Covenant

provide protection to much broader categories of persons

and define the civil and political rights in greater detail.

Part II establishes the general duties of State Parties,

which include the obligation to “take the necessary steps

... to adopt such legislative or other measures as may be

necessary to give effect to the rights recognized in the

present Covenant.” Civil and Political Covenant, art. 2(2).

Articles 2, 3 and 26 set forth the basic principle of equal

protection of the laws. Article 2(1) requires that State

Parties provide the enumerated rights to all individuals

within their jurisdiction without regard to “race, colour,

sex, language, religion, political or other opinion, national

or social origin, property, birth or other status.” Article 3

specifically guarantees “the equal right of men and women

to the enjoyment of all civil and political rights set forth in

the ... Covenant.” Article 26 reinforces the equal protec-

tion language in Article 2 by stating that all persons are

equal before the law and are entitled to equal protection

regardless of any of the specified bases.

8

The Human Rights Committee has also considered

whether distinctions are permissible under the Civil and

Political Covenant which requires that the rights under

the treaty be provided without regard to “race, colour, sex,

language, religion, birth or other status.” Civil and Politi-

cal Covenant, art. 2(1). The Committee recognized that

“not all differentiation of treatment constitutes discrimi-

nation 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.” U.N. GAOR,

Hum. Rts. Comm., 37th Sess., 984th mtg., at 4, U.N. Doc.

CCPR/C/21/Rev. 1/Add.1 (1989).*

Petitioner seeks to eliminate the Law School’s af-

firmative action program that benefits minorities. Peti-

tioner takes the position that affirmative action programs

are inherently discriminatory. See Petition for Writ of

Certiorari at 26, 29. That view of affirmative action

conflicts with the definition of “racial discrimination” in

the Race Convention, which provides that actions “taken

for the sole purpose of securing adequate advancement of

certain racial or ethnic groups or individuals requiring

such protection . . . in order to ensure. . . equal enjoy-

ment or exercise of human rights or fundamental freedoms

shall not be deemed racial discrimination.” Race Conven-

tion, art. 1(4). Indeed, by eliminating programs that seek

to address the lack of equality in certain areas, Petitioner

* See also, Prevention of Discrimination: The Concept and Practice

of Affirmative Action: Report of the Special Rapporteur, Sub-Comm. on

the Promotion and Protection of Human Rights, 53rd Sess., Agenda

Item 5, U.N. Doc. E/CN.4/Sub.2/2002/21 (June 17, 2002), for a report on

the issue of affirmative action at the international and national arenas.

- -_

ee

9

may force the Law School to perpetuate racial discrimina-

tion in violation of the Race Convention.*

This Court made clear in Adarand Constructors, Inc.

v. Pena, 515 U.S. 200 (1995), that a race-based preference

program may be a constitutional means of remedying

discrimination. Justice O’Connor in the majority opinion

recognized that “[tJhe unhappy persistence of both the

practice and the lingering effects of racial discrimination

against minority groups in this country is an unfortunate

reality, and government is not disqualified from acting in

response to it.” Adarand, 515 U.S. at 237. Thus, “[wJhen

race-based action is necessary to further a compelling

interest, such action is within constitutional constraints if

it satisfies the ‘narrow tailoring’ test this Court has set out

in previous cases.” Id. at 237. Petitioner requests that the

Court abandon affirmative action programs that seek to

promote diversity, even those government programs

“narrowly tailored to further a compelling interest,” in

- violation of the Constitution and the provisions of the two

treaties. Indeed, the treaty obligations themselves can

constitute a compelling state interest to justify the estab-

lishment of such programs. See Connie de la Vega, Civil

Rights During the 1990s: New Treaty Law Could Help

Immensely, 65 U. CIN. L. REV. 423, 468 (1997).

* This is similar to the position of Justice Stevens, who was joined

by Justice Ginsberg, in his dissent in Adarand Contractors, Inc. v.

Pena, 515 U.S. 200, 243 (1995), where he noted that there is a differ-

ence between racial classifications that are used for the purpose of

SERRE SS Caen Chas Siew Cie Guat of emmys cee

on.

-10

A prohibition of affirmative action programs will

directly conflict with the obligation of the United States as

a party to the Race Convention, under Article 2(2) to take

“special and concrete measures ... for the purpose of

guaranteeing [racial groups or individuals belonging to

them] the full and equal enjoyment of human rights and

fundamental freedoms.” It may also impinge on the

obligation in the Civil and Political Covenant to take

“necessary steps ... to adopt such laws or other measures

as may be necessary to give effect to the rights recognized”

in that treaty. Civil and Political Covenant, art. 2(2).

Indeed, the Human Rights Committee in 1995, after

considering a report from the United States on its progress

on ensuring the enjoyment of rights under the Covenant,

made the specific recommendation that affirmative action

should be adopted in order to eliminate discriminatory

attitudes and prejudice toward minority groups and

women. See Consideration of Reports: Comments of the

Human Rights Committee, United States of America, U.N.

GAOR, Hum. Rts. Comm., 53rd Sess., U.N. Doc.

CCPR/C/79/Add.50 (1995) at ¥ 30.

Finally, the Race Convention mandates that the

United States should take affirmative steps “to eliminate

racial discrimination in all its forms and to guarantee the

right of everyone, without distinction as to race ... to

equality before the law, notably in the enjoyment of . . . (e)

[e]lconomic, social and cultural rights, in particular: .. . (v)

the right to education and training.” Race Convention, art.

5(e)(v). In this way, Petitioner’s request may also impair

the ability of government entities to meet that obligation,

since it places a burden on minority groups seeking to take

part in education and training.

11

Thus, it is imperative that this Court considers treaty

language in determining whether the University’s pro-

grams at issue violate the Constitution because of the

potential negative impact that the ruling can have on the

United States’ treaty obligations.

Ill. The Application of the Self-Executing Doc-

trine

This Court developed the doctrine of “self-executing”

treaties to limit the Constitutional rule that treaties are

the law of the land. See Foster v. Neilson, 27 U.S. (2 Pet.)

253, 314 (1829). Under that doctrine, only clauses of

treaties that specify duties which directly confer rights

may be enforced directly with the courts.* Courts have

applied various theories when discussing that doctrine.

See Carlos Manuel Vazquez, The Four Doctrines of Self-

Executing Treaties, 89 AM. J. INTL L. 695 (1995). Under

one test, a self-executing clause is “equivalent to an act of

the legislature whenever it operates by itself without the

aid of any legislative provision.” Foster, 27 U.S. (2 Pet.) at

314. Another test looks for the “intent of the parties”

reflected in the treaty’s words and, when the words are

* The holding in Foster was not in complete conformity with prior

decisions upholding the application of treaties. See Stefan A. Riesenfeld

& Frederick M. Abbott, The Scope of U.S. Senate Control Over the

Conclusion and Operation of Treaties, 67 Cui.-Kent L. REV. 571, 577

(1991). Furthermore, Foster must be read in conjunction with United

States v. Percheman, 32 U.S. (7 Pet.) 51 (1833), where the Court

admitted error in its first analysis of the treaty in question. Nonethe-

less, the basic rule remains, that only clauses of treaties that specify

duties that directly confer rights may be enforced directly with the

courts.

12

unclear, in circumstances surrounding the treaty’s execu-

tion. See Comm. of U.S. Citizens Living in Nicar. v.

Reagan, 859 F.2d 929, 937 (D.C. Cir. 1988); Cook v. United

States, 288 U.S. 102, 119 (1933); Jones v. Meehan, 175 U.S.

1, 10-23 (1899); Chew Heong v. United States, 112 U.S.

536, 539-43 (1884); Percheman, 32 U.S. (7 Pet.) at 65-68;

Foster, 27 U.S. (2 Pet.) at 310-16.

The intent of the parties may be difficult to ascertain

when multilateral treaties such as the Race Convention

and the Civil and Political Covenant are involved, and it is

questionable that the intent of only one of the parties

would determine the effect of a particular clause. Multilat-

eral treaties rarely make clear the process by which

parties are to incorporate its provisions into national law.

FRANK NEWMAN & DAVID WEISSBRODT, INTERNATIONAL

HUMAN RIGHTS: LAW, POLICY, AND PROCESS 586 (2d ed.

1996). Many countries, such as the United States, incorpo-

rate treaties without separate action by the legislature.

See Riesenfeld & Abbott, supra note 3, at 575. Indeed, the

original purpose of the Supremacy Clause was to alter the -

British rule that all treaties are “non-self-executing” in

order to require the state courts as well as the federal

courts to enforce treaties directly. See Vazquez, at 698-700.

Some courts have listed factors they considered in

ascertaining intent. See Frolova v. Union of Socialist

Republics, 761 F.2d 370, 373 (7th Cir. 1985); People of

Saipan v. United States Dep’t of Interior, 502 F.2d 90, 97

(9th Cir. 1974). In Frolova v. USSR, the court fashioned

the following factors: the language and purposes of the

agreement as a whole, the circumstances surrounding its

execution, the nature of the obligations imposed by the

agreement, the availability and feasibility of alternative

enforcement mechanisms, the implications of permitting a

13

private cause of action, and the capability of the judiciary

to resolve the dispute. See Frolova, 761 F.2d at 373.

Under the Frolova factors, the Civil and Political

Covenant articles addressing affirmative action are self-

executing. First, the language and purpose of the treaties

are clear in protecting the human rights of individuals.

Second, Article 3 imposes an obligation to State Parties to

provide for effective remedies. It provides as follows:

Each State Party to the present Covenant under-

takes

(a) To ensure that any person whose rights or

freedoms as herein recognized are violated shall

have an effective remedy, notwithstanding that

the violation has been committed by persons act-

ing in an official capacity;

(b) To ensure that any person claiming such a

remedy shall have his rights thereto determined

by competent judicial, administrative or legisla-

tive authorities, or by any other competent au-

thority provided for by the legal system of the

State, and to develop the possibilities of judicial

remedy;

(c) To ensure that the competent authorities

shall enforce such remedies when granted.

Civil and Political Covenant, art. 3.

Third, because the United States has not ratified the

Optional Protocol to the Covenant on Civil and Political

Rights, G.A. Res. 2200A, U.N. GAOR, 21st Sess., Supp.

No. 16, at 59, U.N. Doc. A/6316 (1966), entered into force

Mar. 23, 1976, 999 U.N.T.S. 302, which provides for an

individual right to petition the Human Rights Committee,

there are no other enforcement mechanisms available.

14

~

Fourth, since the treaty provides rights to individuals,

there is no reason to believe that individuals should not

have a private cause of action to enforce the provisions.

Finally, the judiciary is the most capable institution for

addressing whether the treaty has been violated since it

has traditionally been the means whereby individuals in

the United States enforce their constitutional rights.

Despite the clarity of many of the provisions in the

Civil and Political Covenant, the Senate ratified it with a

declaration that it was not self-executing. See 138 CONG.

Rec. $4784-01 (daily ed., April 2, 1992). The same was

done with the Race Convention. See 140 Cona. Rec. S7634

(daily ed., June 24, 1994). It is questionable whether the

Senate, instead of the courts, can make such a determina-

tion. See Connie de la Vega & Jennifer Fiore, The Supreme

Court of the United States Has Been Called Upon to

Determine the Legality of the Juvenile Death Penalty in

Michael Domingues v. State of Nevada, 21 WHITTIER L.

REV. 215, 220 n. 33 (1999). Further, such a declaration

should not be given effect because it runs counter to the

object and purpose of the treaty, which is to protect the

individual rights enumerated therein. See Riesenfeld &

Abbott, supra note 6, at 608. This Court, however, need

not address those points since the legislative history

indicates that the Senate merely intended to prohibit

private and independent causes of action. See 138 CONG.

Rec. $4784. In cases such as this, the governmental

entities would not be using the treaties to assert a private

cause of action. They would use it defensively and thus is

not invoking a separate cause of action. See John Quigley,

Human Rights Defenses in U.S. Courts, 20 HUM. Rts. Q.

555, 581-82 (1998).

15

The defensive use of a treaty is a judicial]

means by which litigants have been re “4 oe

treaty provisions without having courts make a determi-

nation regarding whether the provisions are self-

executing. See, e.g., Kolovrat v. Oregon, 366 U.S. 187

(1961) (allowing defensive use of a treaty to escheat

proceeding under Oregon law); Ford v. United States. 273

U.S. 593 (1927) (allowing use of a treaty as a defense to

personal jurisdiction); Patsone v. Pennsylvania, 232 U.S

138 (1914) (recognizing the defensive use of a treaty in °

criminal case, but ultimately holding that there was no

conflict between the treaty and state law). Hence, this

Court need not address the non-self-executing declaration

and can apply the treaty provisions to this case.

IV. The Treaties Are Helpful f

United States Pacem oe

International human rights standards have often been

useful tools for interpreting laws in the United States. See

e.g., Lareau v. Manson, 507 F. Supp. 1177 (D. Conn. 1980).

See generally Gordon A. Christenson, Using Human Rights

Law to Inform Due Process and Equal Protection Analyses

52 U. Cin. L. REv. 3 (1983); Ruth Bader Ginsburg &

Deborah Jones Merritt, Affirmative Action: An Interna-

tional Human Rights Dialogue, 1 RUTGERS

193 (1999). —

; In 1995, the United States’ delegation to the

Rights Committee stated that “courts of the eo

States] could refer to the Covenant and take guidance

from it.” Statement of Conrad Harper, Legal Advisor, U.S

Department of State, to the United Nations Human Rights

Committee, U.N. GAOR, Hum. Rts. Comm., 53rd Sess.,

16

1405th mtg., U.N. Doc. HR/CT/404 (1995). Hence, as a

means to ensure compliance with the treaty obligations,

the courts of this country should seek guidance from the

Civil and Political Covenant in interpreting United States

laws. Similarly, courts cbuld seek the same interpretive

guidance from Race Convention provisions. Failure to do

so will undermine the United States credibility as a State

Party to these, as well as other treaties.

The treaty obligations above are useful for interpret-

ing the Constitution as well as federal statutory provisions

of encouraging state and local governments to voluntarily

remedy past discrimination. For example, this Court has

recognized that in passing Title VII, Congress intended to

encourage public and private employers to voluntarily

enact race- and gender-based affirmative action programs

in order to accomplish the national goal of “break[ing]

down old patterns of racial segregation and hierarchy.”

United Steelworkers v. Weber, 443 U.S. 193, 208 (1979). By

denying state and local entities the power to voluntarily

redress past discrimination through race- and gender-

conscious means, courts will not only impede the further-

ance of congressionally mandated goals, but will also

impede the goal of eradicating racial and gender discrimi-

nation mandated by the Race Convention and the Civil

and Political Covenant.

Ratification of treaties is not to be treated lightly, and

such action by the President and two-thirds of the Senate

evidences the acceptance of the treaty. The documents

should, therefore, provide meaningful guidance to the

Court.

17

CONCLUSION

For the foregoing reasons, amici urge this Court to

uphold the ruling of the Sixth Circuit in this case.

Respectfully submitted,

CONSTANCE DE LA VEGA

Counsel of Record

Attorney for Amici Curiae

Human Rights Advocates and

the University of Minnesota

Human Rights Center